Balkin on How Social Power Shapes Legal Reason

Jack M. Balkin, Yale Law School, has posted From Off the Wall to On the Wall: How Social Power Shapes Legal Reason:

Throughout the history of the Constitution legal arguments have moved from being "off the wall"-- crazy incompetent, and beyond the boundaries of professional reason, to "on the wall"-- plausible claims on which reasonable minds can differ. Some of these claims have eventually become part of the law, and a few have become orthodox, so that denying them would be off the wall.

This article explains how and why this happens. Arguments move along a spectrum of plausibility depending on who occupies important nodes of power and influence in society. These include political leaders, political parties, social movements, the media, elite lawyers, and legal intellectuals. When powerful actors invest in a fringe claim, they compel the legal profession to debate it. Arguments move on the wall not by general acceptance but by compelled engagement.

Several examples show how this dynamic works in practice. Arguments for same sex marriage only slowly gained traction because gays and lesbians had little social status and had to build support over decades. The constitutional challenge to Obamacare's individual mandate moved on the wall in only a few years because the Republican Party and conservative media were unified behind it. The equal protection argument in Bush v. Gore took only a month because control of the government was at stake. The Trump administration's recent challenge to birthright citizenship had the support of a sitting president, the MAGA social movement, the Republican Party, and the party's affiliated media and institutions. Conservative legal intellectuals quickly devised arguments designed to appeal to a Supreme Court six of whose members were conservatives appointed by Republican presidents.

Underlying this phenomenon is the dual nature of legal consciousness, which combines acceptance of shared professional norms with constitutional protestantism, the belief that individuals can interpret the Constitution for themselves. The phenomenon also exemplifies law's dual character as fixed in the short run and mutable in the long run. Legal education cultivates this duality, training lawyers both to treat existing law as authoritative and to creatively deconstruct it.

The theory recasts jurisprudential debates over legal indeterminacy from the nature of language to sociology and culture. Legal materials are flexible but not infinitely malleable; they are tilted towards entrenched interests until sustained social power changes them. Following these changes, constitutional culture frequently rewrites its own history. Formerly off-the-wall claims that win out are later heralded as always having been correct, while formerly accepted decisions, such as Plessy v. Ferguson, are denounced as “wrong the day they were decided.” This triumphalist narrative obscures the intense social and political labor required to shift the boundaries of professional reason. 

--Dan Ernst 

Weekend Roundup

• On Jeffrey Rosen's "Blessings of Liberty" podcast Jed Shugerman and Ilan Wurman discuss the historical arguments underlying Trump v. Barbara and Trump v. Slaughter. Also, Reva Siegel says that Trump v. Barbara "shows popular constitutionalism in action" (Slate).  

•  A report of the conferral by the University of Edinburgh conferred the degree of Doctor of Laws honoris causa upon Jean-Louis Halpérin, “Professor Emeritus at the École Normale Supérieure (rue d’Ulm, Paris) and a most distinguished legal historian of international reputation” (Edinburgh Legal History Blog). 

• 
  In the latest episode of Breaking History," the podcast of the Supreme Court Historical Society,  "Brad Snyder interviews New York Times reporter Clay Risen about his new book Red Scare: Blacklists, McCarthyism, and the Making of Modern America"  (SCHS).

• A CFP for an on-line workshop on for scholars of American Political Development.  

• Jane E. Calvert and Jonathan Gienapp on John Dickinson’s secret effort to prevent the American Revolution (Law & Liberty).

• ICYMI:  David Blight's congressional testimony in defense of the Smithsonian (YouTube).  W. Caleb McDaniel on Why Regional Branches of the National Archives Matter.  A display on the Master of the Rolls at the UK National Archives (CTJ).    Bruen’s history-and-tradition test after Wolford v. Lopez (SCOTUSblog).  Reactions to the Supreme Court of Ohio's "Story of America: This Day in History” (CNO).  More on that exhibit on Arkansas's constitutional history (KUAF).  The Delaware Supreme Court Turns 75 (DPM)

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

Blackman on Special Counsels before Watergate

Josh Blackman, South Texas College of Law Houston, has posted A Historical Record of Special Counsels Before Watergate:

This Article presents a corpus of primary sources that were written by presidents, attorneys general, United States attorneys, special counsels, and others between the 1850s and the 1950s. This corpus reproduces primary sources from more than a dozen archives to present a better legal account of how special counsels were retained by attorneys general under Presidents James Buchanan, Andrew Johnson, Ulysses S. Grant, James A. Garfield, Theodore Roosevelt, and Harry S. Truman. 

During these six presidential administrations, attorneys general retained outside lawyers as special counsels either: (1) to assist a U.S. attorney with prosecutions or (2) to assist the Attorney General with an investigation. In none of these matters did the Attorney General appoint an outside lawyer as a special counsel and then delegate to him the powers claimed by modern special counsels: all of the powers of a Senate-confirmed U.S. attorney. 

There was one outlier. In 1924, during the Coolidge Administration, Congress enacted legislation establishing Senate-confirmed special counsels to prosecute Teapot Dome scandal defendants. These special counsels were afforded “total independence.” It is doubtful that these positions would be consistent with the Supreme Court’s modern separation of powers jurisprudence. 

This practice shows that the positions of special counsels in the post- Watergate era are not analogous to the positions of special counsels in the pre-Watergate era. Thus, pre-Watergate history does not provide support for the modern, post-Watergate special counsel and the vast powers that they are purportedly vested with. 

--Dan Ernst 

Tolson's "In Congress We Trust?"

Forthcoming from the Cambridge University Press: In Congress We Trust? Enforcing Voting Rights from the Founding to the Jim Crow Era by Franita Tolson, Dean of the University of Southern California Gould School of Law.  It will appear in the series Cambridge Studies on Civil Rights and Civil Liberties:

This book reveals how Congress quietly shaped American elections across more than a century of constitutional development. Far from a passive observer, Congress used its authority to influence key controversies – from the expansion of slavery in new territories to the reconstruction of the post-Civil War electorate. Congress exercised power under the Elections Clause, the Guarantee Clause, and later, the Fourteenth and Fifteenth Amendments, to combat voter suppression, reimagine representation, and determine who could (and could not) participate in American democracy. Even as Jim Crow laws disenfranchised millions, Congress continued to review and sometimes overturn the elections of its own members, refusing to cede complete control to the states. In doing so, Congress routinely subordinated federalism to politics. In Congress We Trust? provides a new perspective on who truly governs our system of elections by showing that federal authority has been broad, lasting, and decisive.

--Dan Ernst

The Decline and Fall of the State Executive Council

We note the publication, as an anonymous “Chapter” in the Developments of the Law section of a recent issue of the Harvard Law Review, of the article The Decline and Fall of the State Executive Council.  From the introduction:

Early state constitutions presented a mosaic of institutional design; but today, their structure largely mirrors that of the federal government. This structural convergence story is best told through the decline and fall of state executive councils. At the Founding, nearly every state had one. But today, only two remain. . . . 

Section A examines the rise of executive councils, beginning with their origins in medieval England. It catalogs how the early executive council evolved from a small circle of the King’s advisors to a central institution in English government exported to the colonies, both shaping and being shaped by early American societies. Section B explores the translation of these colonial-era executive councils into republican institutions and catalogs the abortive failure of the federal plural executive — and the victory of the unitary executive — at the Federal Constitutional Convention. Section C details the executive council’s long and consistent fall from grace. Section D discusses the role of the contemporary executive council in New Hampshire, its last true stronghold. Looking at the history of executive council dissolution over time, three sequential historical causes are clear: federalist reaction, Jacksonian democracy, and successive progressive movements. These three trends have one thing in common: They were national, top-down movements that flattened state power. This Chapter concludes that this institution is worthy of a second look, both locally and nationally.

--Dan Ernst 

ICS Seminar: Presidential Power

[We have the following announcement from our friends at the ICS.  DRE]

The White House (LC)

The Institute for Constitutional Studies at The George Washington University Law School is pleased to announce another seminar for advanced graduate students and junior faculty:

Constitutional Controversies: Presidential Power

Disputes about the breadth and limits of the president’s constitutional powers have been recurrent throughout our nation’s history. This discussion-based seminar will explore a series of “constitutional moments” that relate to presidential authority. After examining debates over the structure of the executive branch eventually adopted in Article II, we will consider a variety of constitutional disputes about presidential power, focusing particularly on events during the Washington, Jefferson, Jackson, Lincoln, FDR, Truman, Nixon, and Trump administrations.

Instructors.  Maeva Marcus, a past president of the American Society for Legal History, is Research Professor of Law and Director of the Institute for Constitutional Studies at the George Washington University Law School. She serves as the general editor of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States. Author of Truman and the Steel Seizure Case: The Limits of Presidential Power, she also edited the eight-volume series The Documentary History of the Supreme Court of the United States, 1789-1800 and Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789.

Steven Steinbach, GWU Professorial Lecturer in Law, taught United States History and American Government courses and served as History Department Chair at Sidwell Friends School in Washington, DC. Previously he was a partner in the Washington, DC, law firm of Williams & Connolly LLP, where he specialized in criminal and civil litigation.

Meeting Time. Monday evenings, 6-8 pm

Dates.  August 31; September 14, and 28; and October 5, 12, 19, and 26, 2026.

Location. The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052. The classroom location will be communicated at a later date.

Application Process.  The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their curriculum vitae and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at icsgw@law.gwu.edu until August 23, 2026. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at maevamarcus@law.gwu.edu.

Additional Information.  There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

About ICS.  The Institute for Constitutional Studies (ICS) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution.  Begun with the assistance of a challenge grant from the National Endowment for the Humanities, the Institute is located at the George Washington University Law School.  To fulfill its mission, the Institute’s seminars explore the important role the Constitution has played in shaping American society.

Li's "Supreme Pressure"

Victor Li has published Supreme Pressure: The Rejection of John J. Parker and the Birth of the Modern Supreme Court Confirmation Process (Palgrave Macmillan): 

This book examines the 1930 Supreme Court nomination of John J. Parker, a turning point in American judicial politics. Alarmed by some of his past statements and opinions, labor and civil rights groups mounted a fierce campaign to block his confirmation. Not only was control of the Supreme Court hanging in the balance, but Parker's nomination symbolized a profound clash of ideologies, political agendas, economic doctrines, and interpretations of the Constitution. Their efforts sparked a dramatic Senate revolt, marking the first successful grassroots campaign to block a Supreme Court nominee.

By exploring the circumstances of Parker’s rejection, this book traces how that battle laid the foundation for today’s highly partisan and contentious confirmation process. The book also reintroduces Parker as a consequential but largely forgotten figure in American jurisprudence—one whose rulings helped shape the South’s legal response to Brown v. Board of Education. Beyond the nomination fight, it delves into Parker’s political campaigns, judicial opinions, and relationships with key public figures, charting his dramatic rise, humiliating defeat, and enduring influence.

Packed with intrigue, strategy, and the clash of competing ideologies, this is the story of how one nomination forever changed the rules of the game.

--Dan Ernst

 

Katz on the Uruguayan Plebiscite of 1980

Andrea Scoseria Katz, Washington University in St. Louis School of Law, has posted No Higher Law: The Uruguayan Plebiscite of 1980 as a Failed Constituent Moment:

On November 30, 1980, the people of Uruguay were called on to vote on a new constitution whose objective was to legalize the military dictatorship that had ruled Uruguay since 1973. The proposed constitution would reestablish elections, political parties, and an independent judiciary, but all subject to overrule by the National Security Council (COSENA), the junta of military leaders that acted as the nation's de facto ruling body. Despite the highly repressive political environment in which the plebiscite was held, the citizenry rejected the draft in resounding fashion by a vote of 57% to 43%. Although the Plebiscite of 1980 was certainly a "failure" from the regime's point of view, it is considered a founding moment in Uruguayan history during which the dictatorship was delegitimized and the process of redemocratization triggered, culminating in a democratic transition in 1985. This case illustrates that constitutional failures can be successes in the long term when they launch deeper processes of democratization or constitutionalism.

--Dan Ernst

JSCH 50:3

Journal of Supreme Court History 50:3 has been published.  Here is the TOC:

Louis D. Brandeis on the Supreme Court: An Oral History
Lewis J. Paper and Peter Scott Campbell

Behind the Scenes of Norman v. Reed with Justice Stevens: How a Local Chicago Political Battle Resulted in an Unlikely (and Rare) Supreme Court Case on the Rights of New Political Parties
Mathias W. Delort

The Lost Case of Solicitor General v. United States
G. Edward White

A New Era of Poverty Litigation: The Warren Court’s Consideration of the Rights of Aid Recipients in King v. Smith
Claire Shennan

The excerpts from the oral history interviews for Paper's biography of Brandeis are great fun.

--Dan Ernst 

AHA Webinar: Shutdown History

[We have the following announcement from the American Historical Association.  DRE]

History Behind the Headlines: Government Shutdowns and the Federal Budget

Thursday, October 16, 1:30 p.m. ET

Threats of a US government shutdown have become a staple of the federal budget process during the past few decades. Join moderator Kathryn Cramer Brownell (Purdue Univ.) and panelists Lily Geismer (Claremont McKenna Coll.), John Lawrence (Univ. of California Washington Center), and Jeremi Suri (Univ. of Texas at Austin) for a discussion of the history of federal appropriations, why shutdowns have become so common, and their broader historical implications.

The event is free to attend and open to all; registration is required. The webinar will be recorded and made available on our YouTube channel after the event. Events in the History Behind the Headlines series are generously sponsored by AHA member Jared Brubaker.

Gaughan on Eras of Campaign Finance Law

Anthony J. Gaughan, Drake University Law School, has posted Cyclical Misalignment: A History of Campaign Finance Law, which is forthcoming in the Ohio State Law Journal:

The role of money in politics poses a thorny challenge to democratic government. In a healthy democracy, individual voters should have an equal influence on election outcomes. But robust political discourse depends on candidates having access to effective means of communication. In the absence of a comprehensive public funding system, candidates must turn to private donors to finance their campaigns. Candidates’ reliance on wealthy supporters creates the risk that the rich will exercise disproportionate influence over public policy. Principles of free speech and democratic equality thus sit uneasily together in privately funded campaign finance systems. The United States is the leading case in point. Since the 1700s, Americans have struggled to strike a balance between access to campaign funds on one hand and democratic accountability and responsiveness on the other.

This article examines the history of American campaign finance law prior to the adoption of the 1974 amendments to the Federal Election Campaign Act. The period from 1619 to 1974 saw the rise and fall of three distinct campaign finance eras characterized by unique laws and practices: the Aristocratic Era (1619-1790s), the Patronage Era (1790s to 1883), and the Nominally Regulated Era (1883 to 1974). 

This article contends that the American campaign finance system has proven exceptionally difficult to align with democratic values. The Aristocratic Era, the Patronage Era, and the Nominally Regulated Era reveal the extent of the alignment challenge. On paper at least, each era’s campaign finance system sought to facilitate representational and policy alignment with democratic values by ensuring that elected officials reflected the will of their constituents. But in each case, the reforms failed to achieve the long-term goals of the reformers. Technological change, partisan manipulation, wealthy special interest groups, and evolving popular and elite preferences inevitably led to misalignment. History thus provides a cautionary note for modern campaign finance reformers. It suggests that aligning campaign finance law may be the hardest alignment challenge of all.    

--Dan Ernst 

CFP: American Political History Conference

[We have the following CFP.  DRE]

Call for Proposals: American Political History Conference, June 4-6, 2026, Johns Hopkins Bloomberg Center, Washington D.C.  Proposal Deadlines: December 31, 2025

“American Democracy as Political History: Challenges across the Past, Present, and Future"

 A strong understanding of the past is critical to strengthening American democracy and to navigating the seismic shifts happening in our nation today. This conference will explore the social, economic, and cultural pathways that created this current political moment and provide essential insights on how to address pressing issues of polarization, injustice, inequality and democratic erosion. This event will bring political historians and other historically minded scholars into conversation with one another and the broader public to grapple with the democratic challenges facing the vast “American project” at the nation’s semiquincentennial. It will challenge the traditional categories of political history — liberal and conservative, elite and populist, rural and urban — as well as subfield divisions that have produced disciplinary silos. It will create opportunities to build networks, share new research, debate ideas, think about the contemporary implications of this research, and discuss strategies for public engagement.

We invite panel and paper submissions that reflect the diversity of the field of American political history, from the colonial era to recent history. We especially encourage roundtable and workshop ideas that will foster dynamic conversations about how we write and understand political history across time periods, subfields, and disciplines. We welcome sessions that challenge traditional paradigms in political history and address broad historical time periods. We especially encourage conversations that include scholars working in the eighteenth and nineteenth century. We also welcome historians from different arenas—including academia, public history, public policy, journalism, documentary film, television, podcasting, and radio—to launch conversations about the contemporary meaning and uses of history. More than just sharing specific historical insights, this conference aims to bring together an intellectual community of historians within and beyond academia to inspire conversations about the uses of history, the public responsibilities of historians to engage broader audiences, and the skills needed to do this.

The program committee is deeply committed to inclusion and diversity. Successful session proposals will be attentive to gendered, racial, and career diversity among participants. In service of this goal, we have limited funds available to support graduate students and contingent faculty. The conference will be held in-person, with provisions made for international scholars concerned about entry into the U.S.

Submissions should be up to 500 words with proposals for individual papers or panel, roundtable, or workshop sessions. Each proposal should also include a biographical statement for each participant of up to 150 words that includes contact information. Please submit proposals in one Word or PDF document to brownell@purdue.edu by December 31, 2025.

Program Committee:

Kathryn Cramer Brownell, Purdue University (co-chair)
Nicole Hemmer, Vanderbilt University (co-chair)
Leah Wright, Johns Hopkins University (co-chair)
A.J. Bauer, University of Alabama
Kellie Carter Jackson, Wellesley College
Bobby Cervantes, Harvard University
Lindsay M. Chervinsky, George Washington Presidential Library at Mount Vernon
Elizabeth Hinton, Yale University
John S. Huntington, Houston Community College
Michael Koncewicz, New York University
Cecilia Márquez, Duke University
George Derek Musgrove, University of Maryland Baltimore County
Gautham Rao, American University
Rachel Shelden, Penn State University

This conference is made possible in part by funding from the Johns Hopkins Nexus Award grant.

Handler on the Administrative Law of McCarthyism

Nicholas Handler, Texas A&M University School of Law, has posted The Administrative Law of McCarthyism, which is forthcoming in the Stanford Law Review:

Senator Joseph McCarthy (wiki)

This Article recovers the largely overlooked legal and administrative history of the federal loyalty-security program, and argues that it played a formative role in the development of modern civil service protections and administrative law. During the McCarthy era, the United States Civil Service Commission (CSC), under pressure from Congress, implemented a sweeping loyalty program aimed at rooting out purportedly disloyal federal employees. Though often remembered as a moment of political overreach and civil liberties violations, this Article shows that the loyalty program simultaneously catalyzed a surprising expansion in procedural rights for government workers—both through internal reforms initiated by the CSC and through judicial decisions that extended emerging administrative law doctrines into the domain of federal employment.

Drawing on original archival research, this Article reconstructs how the Loyalty Review Board, housed within the CSC, developed formalized standards for loyalty adjudications, including evidentiary thresholds, rights to notice and counsel, and appellate review. These procedures, while initially limited to loyalty hearings, came to inform broader doctrines governing the removal and discipline of civil servants. In particular, courts began to apply principles such as the Accardi doctrine and the Chenery rule—originally developed for public-facing regulatory action—to disputes between the federal government and its own employees. The result was a nascent body of administrative law that treated personnel decisions not as matters of unfettered executive discretion, but as legal acts subject to procedural constraint.

The Article makes two central claims. First, it argues that civil service law should be understood as a core component of administrative law—not merely a subspecialty of public employment law. Legal rules governing the hiring, discipline, and removal of civil servants serve the same functions as more familiar administrative law doctrines: they mediate interbranch conflict, preventing any one branch from dominating federal policy-making and thus serving deeper separation-of-powers and rule of law values. Second, it argues that the regulation of federal employment not only prevents the aggrandizement of the political branches, but also protects individual rights. In the postwar era, federal jobs functioned as a major form of state-administered benefit, and the procedures surrounding those jobs shaped broader public expectations about fairness, merit, and due process. Those expectations were deeply challenged during the unrest of the McCarthy period, but were ultimately vindicated by the creative adaption of administrative law principles.

These lessons are newly relevant today, as the second Trump administration embarks upon one of the most ambitious attempts to remake the federal civil service in generations, often explicitly seeking to replace merit systems with tests of personal and political loyalty.

--Dan Ernst

Kessler on Authoritarianism in Marxist Thought

Jeremy Kessler, Columbia Law School, has posted The Problem of Authoritarianism in Marxist Legal Thought, which is forthcoming in the Oxford Handbook on Law and Authoritarianism, edited by Cora Chan, Madhav Khosla, Benjamin Liebman, and Mark Tushnet:

The more that contemporary scholars of authoritarianism seek to distinguish between, on the one hand, competitive authoritarianism and authoritarian legality and, on the other, the liberal and democratic deficits of ostensibly liberal democratic regimes, the more they will be retracing the immensely creative if often tragic steps of Marxist legal thought. This chapter sets itself two tasks. First, to provide an overview of Marxist legal theorists’ relationship to authoritarianism, both in its liberal democratic and more avowedly illiberal, anti-democratic forms. Second, to make some sense of an intellectual tradition that began by criticizing authoritarianism, came to defend it, and then spent decades in the wilderness – if not the grave – trying to rectify its errors. 

The chapter is organized in a chronological series of vignettes, each of which aims to capture a stage in the Marxist encounter with authoritarianism: Karl Marx and Friedrich Engels on bourgeois legality and the dictatorship of the proletariat; Vladimir Lenin and Rosa Luxemburg on the relationship between democracy and proletarian dictatorship; Evgeny Pashukanis and Pyotr Stuchka’s debate about the practical possibility and political tendency of “proletarian law”; Franz Neumann and Ernst Bloch’s reconsiderations of the relationship between socialism and natural law; and Nicos Poulantzas and the Neue Marx-Lektüre’s return to Luxemburg and Pashukanis as means of making sense of authoritarian tendencies on both sides of the Iron Curtain. 

Taken as a whole, the chapter argues that Marxist legal thought was ahead of its time in emphasizing the authoritarian potential of liberal democratic institutions under conditions of capitalist hierarchy and atomization. Contemporary trends in the study of authoritarianism are rediscovering this basic Marxist insight. At the same time, when it came to confronting the authoritarian tendencies of anti-capitalist movements and regimes, Marxist legal thought oscillated between denial, denunciation of law and the state as such, and rediscovery of the virtues of capitalist and pre-capitalist legal and political forms. Whether that oscillation testifies to human society’s inability to transcend capitalism or its inability to transcend more fundamental facts about human nature is the question that continues to divide Marxist from liberal and conservative legal thought. However one answers that question, the problem of authoritarianism remains. Now more than ever, law appears capable of making that problem better or worse, depending on underlying social conditions. To that extent, at least, Marxist legal thought has often seen things more clearly than its liberal and conservative antagonists. 

Other contributions to the volume include essays by my Georgetown Law colleague Mark Jia and by YLS's Taisu Zhang.

--Dan Ernst

McKoski's "Lincoln's Favorite Judge"

Raymond J. McKoski, a retired Illinois Circuit Judge and adjunct professor at the University of Illinois Chicago School of Law, has published David Davis, Abraham Lincoln's Favorite Judge (University of Illinois Press):

One of Abraham Lincoln’s staunchest and most effective allies, Judge David Davis masterminded the floor fight that gave Lincoln the presidential nomination at the 1860 Republican National Convention. This history-changing event emerged from a long friendship between the two men. It also altered the course of Davis’s career, as Lincoln named him to the U.S. Supreme Court in 1862.

Raymond J. McKoski offers a biography of Davis’s public life, his impact on the presidency and judiciary, and his personal, professional, and political relationships with Lincoln. Davis lent his vast network of connections, organizational and leadership abilities, and personal persuasiveness to help Lincoln’s political rise. When Davis became a judge, he honed an ability to hear each case with complete impartiality, a practice that endeared him to Lincoln but one day put him at odds with the president over important Civil War–era rulings. McKoski details these cases while providing an in-depth account of Davis’s role in Lincoln’s two unsuccessful campaigns for U.S. Senate and the fateful run for the presidency.

The introduction and more are here.

--Dan Ernst 

Klaaren on Law under Apartheid

Jonathan Klaaren, University of the Witwatersrand, has posted Law under Apartheid, which is forthcoming in the unfortunately timely Oxford Handbook of Law and Authoritarianism, edited by Cora Chan, Madhav Khosla, Benjamin Liebman, and Mark Tushnet:

Law under apartheid in South Africa between 1948 and 1986 may be understood as an instance of authoritarianism and specifically of autocratic legalism. Authoritarian regimes usually employ the tactics of autocratic legalism in the electoral field, using existing laws as well as creating new constitutional and statutory rules. In apartheid's first decade, the white National Party regime continued to adversely incorporate Africans and other blacks into subordinate legal orders and to exclude them from a common and equal citizenship. Law in a bureaucratic mode used to regulate civil registration and the mobility of urban residents was the locus of differentiation. With the declaration of the Republic of South Africa in 1961 and the commitment to apartheid Bantustans (homelands), the regime further eroded the rule of law, doubled down on racial discrimination, and regulated mobility through the construction of international borders internally and in Southern Africa. In the 1980s, law was used as a shield and a sword in both the maintenance of and the resistance to apartheid, providing some lessons for understanding law under authoritarianism. 

--Dan Ernst

US History through Its Assassinations

Mark Jones, professor emeritus of criminal justice and criminology, East Carolina University, has published A History of the United States through High-Profile Assassinations (Cognella):

A History of the United States through High-Profile Assassinations presents a unique perspective on American history, framing the narrative through a sequence of notable assassinations and attempted assassinations. This approach offers a novel lens through which to examine historical continuity and change. The text emphasizes the broader social, political, and historical contexts revealed by these violent acts, regardless of whether the perpetrators aimed to make a political statement.

The book explores the evolution of the term "assassination," its historical roots, and its impact on social and political change globally and within the United States. It delves into typologies of assassins, uses various historical episodes to discuss broader issues, and includes less explored assassination attempts alongside well-known events. Additionally, the book pays attention to the narratives often relegated to the sidelines of history, reflecting on the experiences of ethnic minorities and women.

A History of the United States through High-Profile Assassinations serves as a compelling primary or supplemental text for courses in American history, criminal justice, and political science. It provides an innovative approach to learning that encourages students to connect individual events with larger national and international trends.

--Dan Ernst

JACH: Spring 2025

The Spring 2025 issue of the Journal of American Constitutional History is now online.   

Dictatorship in the American Founding
Adam Lebovitz

Throughout the Revolutionary War, America experimented extensively with forms of emergency governance explicitly modeled on the Roman dictatorship, at both the national and the state levels. Surprisingly, America’s leading authors and statesmen rejected dictatorship in the Constitution, not primarily from fear of concentrated authority, but because they deemed this institution ill-suited to the rigors of modern statecraft.

Originalism and the Path to Partisan Jurisprudence: The Guidelines on Constitutional Litigation inside the Reagan Administration
Logan Everett Sawyer III+

Documents from the National Archives and elsewhere reveal why Reagan’s DOJ first adopted originalism, and then transformed it to serve a deeply contested, partisan legal-policy agenda.

Infringed
Daniel D. Slate

The legal concept of “infringement” at the time of ratification of the Second Amendment in 1791 meant that a right could be regulated—that is, given more definitive shape or partially curtailed or restricted—if the process by which the regulation came about was regulated through a duly elected legislature acting with the public good in mind.

Farm-Bloc Federalism: The Rise, Fall (and Rise Again?) of a Constitutional Coalition
Roderick M. Hills, Jr.+

Between 1832 and 1932, politicians from a “farm bloc” of states in the South, Midwest, Prairie, and Mountain West embraced and then rejected the idea that the Constitution limited the federal government’s power over a variously defined set of issues. This history of federalism’s ups and downs illustrates how political parties generally craft doctrine to achieve stability in the face of disagreement about values and interests.

--Dan Ernst

AHA Briefing: The Federal Civil Service

[We have the following announcement.  DRE]

The American Historical Association invites you to attend a Congressional Briefing offering historical perspectives on the federal civil service. The briefing will take place on Monday, April 7, at 9:00 a.m. ET in Rayburn House Office Building Room 2075. 

Panelists Joseph A. McCartin (Georgetown Univ.), Margaret Rung (Roosevelt Univ.), and Eric S. Yellin (Univ. of Richmond) will discuss how the federal government’s bureaucracy has evolved over time, including who has been eligible for federal employment, significant legislation concerning federal employment, processes of federal hiring and how they have changed over time, and the role of unions. The AHA's James Grossman will moderate.

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

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

Thompson on Mandamus and Democracy

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

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

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

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

--Dan Ernst