Calderón, Fouka & Tabellini on the Great Migration and Civil Rights

Álvaro Calderón, United Nations-Foreign Direct Investment Unit, Vasiliki Fouka, Stanford University, and Marco Tabellini, Harvard Business School, have posted Legislators' Response to Changes in the Electorate: The Great Migration and Civil Rights:

Between 1940 and 1970, during the second Great Migration, more than four million African Americans moved from the South to the North of the United States. In this period, blacks were often excluded from the political process in the South but were eligible to vote in the North. We study if, by changing the composition and the preferences of the northern electorate, the Great Migration increased demand for racial equality and induced legislators to more actively promote civil rights legislation. We predict black inflows by interacting historical settlements of southern born blacks across northern counties with the differential rate of black emigration from different southern states after 1940. We find that black in-migration increased the Democratic vote share and encouraged grass-roots activism. In turn, Congress members representing areas more exposed to black inflows became increasingly supportive of civil rights. They were not only more likely to vote in favor of pro-civil rights bills, but also more willing to take direct actions, such as signing discharge petitions, to promote racial equality. Investigating the mechanisms, we document that both “between” and “within” party changes contributed to the shift in the position of northern legislators on civil rights. Taken together, our findings suggest that the Great Migration played an important role in the development and success of the civil rights movement.

--Dan Ernst

Balkin on the Cycles of Constitutional Time

Jack M. Balkin, Yale Law School, has posted Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time:

Over the course of a little more than a century, American liberals (or in an earlier period, progressives) and conservatives have switched positions on judicial restraint, judicial review, and the role of the federal courts – not once, but twice. This cycling has multiple causes, including changes in the Supreme Court's docket and partisan strategies for judicial appointments.

Behind the composition of the Court's docket and the judicial appointments process, however, is a still deeper cause: the slowly changing structure of national party competition in the United States. Throughout American history national politics has been organized around a series of political regimes in which one party is dominant and sets the basic agenda for political contest. The dominant party also usually has more opportunities to shape the federal judiciary. Eventually the dominant party’s coalition falls apart and a new regime begins, led by a different party. This has happened six times in our nation's history, and we appear to be on the cusp of a seventh transformation.

Generational shifts in views about judicial activism and judicial restraint mirror the rise and fall of political regimes led by dominant parties. The kinds of the cases the Justices select, and how the Justices exercise their powers of judicial review, reflect whether we are early in the regime, in its middle years, or in its later days. For this reason, the rise and fall of regimes shapes partisan (and ideological) attitudes about the exercise of judicial review.

Early in a regime, the newly dominant party faces opposition from judges appointed by the old regime and obstacles from the constitutional jurisprudence those judges created. Hence its supporters tend to be more skeptical of judicial review. As the dominant party gains control of the courts, however, its followers increasingly recognize the importance of judicial review to promote and protect the party's commitments of ideology and interest. The positions of the two parties are symmetrical: as time goes on, the dominant party relies ever more heavily on judicial review to further its goals, while the other party gradually loses faith in the courts and increasingly preaches judicial restraint--although neither party entirely gives up on using the courts to promote its favored policies. As a political regime moves from its beginning to its conclusion, the positions of the two parties gradually switch, and so too do the views of legal intellectuals associated with the parties. The effect, however, is generational, and not everyone changes sides: older legal intellectuals may cling to their long-held beliefs about judicial review, while younger thinkers adopt a different perspective.

Constitutional theories – such as originalism and living constitutionalism – also evolve to reflect changing views about judicial review and judicial restraint. For example, while conservative originalism began as a justification for judicial restraint, it soon evolved to justify strong judicial review; the same thing happened to living constitutionalism earlier in the twentieth century.

--Dan Ernst.  H/t: Legal Theory Blog

Casto to Speak on Robert H. Jackson and FDR

William R. Casto, the Paul Whitfield Horn Professor at Texas Tech University, will speak on his book Advising the President: Attorney General Robert H. Jackson and Franklin D. Roosevelt, published last year by the University Press of Kansas, at the Franklin D. Roosevelt Library and Museum on Wednesday, July 31, 2019 at 4:00 p.m.  Click here to register. 

It is broadly understood that a president might test the limits of the law in extraordinary circumstances -- and does so with advice from legal counsel. Advising the President is an exploration of this process, viewed through the experience of President Franklin D. Roosevelt and Robert H. Jackson on the eve of World War II. The book directly grapples with the ethical problems inherent in advising a president on actions of doubtful legality; eschewing partisan politics, it presents a practical, realistic model for rendering -- and judging the propriety of -- such advice.

Jackson, who would go on to be the chief US prosecutor at the Nuremberg war crimes trials, was the US solicitor general from 1938-1940, US attorney general from 1940-1941, and Supreme Court justice from 1941-1954. William R. Casto examines the legal arguments advanced by Roosevelt for controversial wartime policies such as illegal wiretapping and unlawful assistance to Great Britain, all of which were related to important issues of national security. Putting these episodes in political and legal context, Casto makes clear distinctions between what the adviser tells the president and what he tells others, including the public, and between advising the president and subsequently facilitating the president's decision.

Based upon the real-life experiences of a great attorney general advising a great president, Casto's timely work presents a pragmatic yet ethically powerful approach to giving legal counsel to a president faced with momentous, controversial decisions.

--Dan Ernst

Spitzer on Washington State's Blanket Primary

Hugh D. Spitzer, University of Washington School of Law, has posted Be Careful What You Wish For: Private Political Parties, Public Primaries, and State Constitutional Restrictions, forthcoming in the Washington Law Review 94 (2019): 823-50:

Political parties always disliked the Progressive Era changes that pulled the entire electorate into nominating candidates. Why, after all, should non-party members participate in the affairs and choices of private organizations? Over the course of a century, Democrats, Republicans, and minor parties repeatedly mounted lawsuits to attack new primary laws, and they eventually prevailed on a key constitutional issue: the First Amendment right of association. But when political actors access the courts for strategic purposes, they can get caught in the vagaries of history and public attitudes, with outcomes they might not like. This essay focuses on the history of Washington State’s “direct primary” and “blanket primary” systems, the repeated lawsuits challenging them, and the freedom of association doctrine that propelled the blanket primary’s 2004 demise. It then recounts the blowback from Washington voters, who enacted a “top two” primary system that sidelined the political parties by sending the two highest vote-getters to the general election regardless of political affiliation. It asserts that remaining aspects of Washington’s election system might violate the state’s own constitution, and that things could get worse than ever for the parties, perhaps disrupting precinct officer elections and even the state’s presidential primary. How did the political parties wind up at odds with their own voters, with an outcome opposite to what they intended? This essay suggests that the answer lies in a web of conflicts: between litigation and political strategies; between the federal and state constitutions; and between the First Amendment’s protections of freedom of association, the late nineteenth century populist constitutional ban on public assistance to private entities, and the early twentieth century progressive goal of forcing private political parties to open their processes to the voting public. It concludes that long-term litigation strategies to address political issues can fail to achieve their objectives when those lawsuits overlook historical policy choices and ignore popular sentiments entrenched in the national and state constitutions.

--Dan Ernst

Okayama's "Judicializing the Administrative State"

Hiroshi Okayama, Professor of Political Science in the Faculty of Law at Keio University, Tokyo, Japan, has published Judicializing the Administrative State: The Rise of the Independent Regulatory Commissions in the United States, 1883-1937 (Routledge, 2019):

A basic feature of the modern US administrative state taken for granted by legal scholars but neglected by political scientists and historians is its strong judiciality. Formal, or court-like, adjudication was the primary method of first-order agency policy making during the first half of the twentieth century. Even today, most US administrative agencies hire administrative law judges and other adjudicators conducting hearings using formal procedures autonomously from the agency head. No other industrialized democracy has even come close to experiencing the systematic state judicialization that took place in the United States.

Why did the American administrative state become highly judicialized, rather than developing a more efficiency-oriented Weberian bureaucracy? Legal scholars argue that lawyers as a profession imposed the judicial procedures they were the most familiar with on agencies. But this explanation fails to show why the judicialization took place only in the United States at the time it did. Okayama demonstrates that the American institutional combination of common law and the presidential system favored policy implementation through formal procedures by autonomous agencies and that it induced the creation and development of independent regulatory commissions explicitly modeled after courts from the late nineteenth century. These commissions judicialized the state not only through their proliferation but also through the diffusion of their formal procedures to executive agencies over the next half century, which led to a highly fairness-oriented administrative state.

Here's the TOC:

Introduction
Chapter 1: Why Did the U.S. Administrative State Judicialize?
Chapter 2: The Judicial Roots of the Interstate Commerce Commission
Chapter 3: Creating the "Supreme Court of Finance"
Chapter 4: Retrenching Administrative Commissions, Expanding State Judiciality
Chapter 5: The Institutional Consolidation of the Independent Regulatory Commissions
Conclusion

--Dan Ernst

Seidman on Populist and Progressive Strands in Liberal Constitutionalism

Louis Michael Seidman, Georgetown University Law Center, has posted Why Bernie is Confused: Populist and Progressive Strands in Liberal Constitutionalism:

Many modern liberals believe that the federal government is captured by a “billionaire party” determined to wield public power for private gain. But many of them also believe in giving the federal government greatly enhanced powers, like administering “Medicare for all.”

There is a history to this contradiction. Modern liberalism is an amalgam of older populist and progressive impulses with deep roots in the country’s past. The populist impulse locates the source of economic oppression in government corruption. The solution to this problem is direct, popular democracy. Progressives tend to locate the source of economic oppression in the malfunction of private markets. The solution to this problem is government regulation by elite experts shielded from popular control.

Bernie Sanders speaks as a populist when he complains about the billionaire party; he speaks as a progressive when he advocates Medicare for all; and he speaks as a liberal when he fails to notice the tension between these two views.

This article’s primary focus is on how this contradiction plays out in the context of constitutional law. Populists and progressives had different conceptions of the corruption that constitutional law should address. For progressives, corruption consisted of contamination of government expertise by ignorant and prejudiced mass opinion. In contrast, populists distrusted rationalistic, elite opinion. The corruption they feared was elite government control that led to the oppression of ordinary people by “their betters.”

This article examines the dispute between populists and progressives in the context of the Scopes Monkey Trial, Buck v. Bell, Skinner v. Oklahoma, West Virginia State Board of Education v. Barnette, the Warren Court era, and our present period. A conclusion explores ways in which the conflict between populists and progressives might be resolved.

--Dan Ernst

Weekend Roundup

• The University of Chicago Law School has posted the video of Why Madison Matters: Rethinking Democracy in America,”  this year’s Maurice and Muriel Fulton Lectureship in Legal History, delivered by James T. Kloppenberg, the Charles Warren Professor of American History at Harvard University.   As the Law School’s website reports, “Drawing from Madison's writings along with those of other founding fathers, including James Wilson and Alexander Hamilton, Kloppenberg suggested that they aimed not merely to balance competing interests but to pursue what Madison called ‘justice and the general good.’”  

• Congratulations to recent Guest Blogger Sarah Seo for the inclusion of Policing the Open Road in the New Yorker’s What We’re Reading This Summer!

• Shall Not Be Denied: Women Fight for the Vote, an exhibit at the Library of Congress, runs through September 2020

• The Department of Government at the University of Texas at Austin invites graduate student submissions for the sixth annual Graduate Conference in Public Law, to be held October 24-25, 2019.  Among the contemplated submissions are papers on "Constitutional or Political Development."  Julie Novkov, University at Albany, SUNY, who writes at the intersection of law, history, US Political Development, and subordinated identities, will deliver the keynote.

• Call for Papers: Law and Governance of a Global City: 17th-Century Amsterdam," June 2020.  "Four hundred years ago, like today, globalisation and urbanisation impacted the world’s cities. In seventeenth-century Amsterdam, the afflux of trade and migrants prompted rapid economic and demographic growth, resulting in dynamic multicultural urban life and leading to complex questions of governance."  H/t: JG.

• ICYMI: Will Baude on originalism in the Volokh Conspiracy.  

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

CFP: Policy History 2020

The Institute for Political History, the Journal of Policy History and the Arizona State University Political History and Leadership program are hosting the eleventh biennial Conference on Policy History in Tempe, Arizona from Wednesday, June 3 to Saturday, June 6, 2020.

We are currently accepting panel and paper proposals on all topics regarding American political and policy history, political development, and comparative historical analysis. Complete sessions, including two or three presenters with chair/commentator(s), and individual paper proposals are welcome. Participants may only appear once as a presenter in the program.

The deadline for submission is December 13, 2019.   Proposals for panels and papers must be submitted online at the links below, and must include the following:

1. Name(s)
2. Institutional Affiliation(s)
3. Status (i.e. ABD, Doctoral Student, Assistant/Associate/Full Professor)
4. Email address(es).
5. Mailing Address(es).
6. Panel and paper title(s).
7. One (1) 150 word abstract of panel and papers in Microsoft Word or PDF format.
8. 75 word description of each presenter or panel participant including educational background, major publications, awards or fellowships, also in Microsoft Word or PDF format.

Submit paper proposals here.  Submit panel proposals here.  --Dan Ernst

Whittington on "Judicial Review Acts of Congress from the Founding to the Present"

The University of Press of Kansas has published Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present (May 2019), by political scientist Keith E. Whittington (Princeton University). A description from the Press:

When the Supreme Court strikes down favored legislation, politicians cry judicial activism. When the law is one politicians oppose, the court is heroically righting a wrong. In our polarized moment of partisan fervor, the Supreme Court’s routine work of judicial review is increasingly viewed through a political lens, decried by one side or the other as judicial overreach, or “legislating from the bench.” But is this really the case? Keith E. Whittington asks in Repugnant Laws, a first-of-its-kind history of judicial review. 

A thorough examination of the record of judicial review requires first a comprehensive inventory of relevant cases. To this end, Whittington revises the extant catalog of cases in which the court has struck down a federal statute and adds to this, for the first time, a complete catalog of cases upholding laws of Congress against constitutional challenges. With reference to this inventory, Whittington is then able to offer a reassessment of the prevalence of judicial review, an account of how the power of judicial review has evolved over time, and a persuasive challenge to the idea of an antidemocratic, heroic court. In this analysis, it becomes apparent that that the court is political and often partisan, operating as a political ally to dominant political coalitions; vulnerable and largely unable to sustain consistent opposition to the policy priorities of empowered political majorities; and quasi-independent, actively exercising the power of judicial review to pursue the justices’ own priorities within bounds of what is politically tolerable. 

The court, Repugnant Laws suggests, is a political institution operating in a political environment to advance controversial principles, often with the aid of political leaders who sometimes encourage and generally tolerate the judicial nullification of federal laws because it serves their own interests to do so. In the midst of heated battles over partisan and activist Supreme Court justices, Keith Whittington’s work reminds us that, for better or for worse, the court reflects the politics of its time.

A sample of advance praise:

Keith Whittington’s invaluable and comprehensive survey of Supreme Court decisions striking down--and upholding—federal statutes carefully maps the complex relations between the Court and the political coalitions that produce, support, or sometimes abandon the laws the Court reviews. Bringing insights from American political development to bear, Whittington has supplanted Robert Dahl’s classic work while preserving its core. Everyone interested in American political development and the Supreme Court must now take this work into account.” —Mark Tushnet

More information is available here.

-- Karen Tani

In conjunction with the publication of Repugnant Laws, Professor Whittington has released a "Judicial Review of Congress" database that, in his words, “aspires to catalog every case in which the U.S. Supreme Court substantively reviewed the constitutionality of an application of a provision of a federal statute from the founding through the retirement of Justice Anthony Kennedy. As well as identifying the cases, the dataset includes a range of information about each case.”  Professor Whittington hopes “to add both cases and variables over time, as well as provide a more reader-friendly list of the cases.”  He continues:

For various reasons, the dataset includes a substantially larger number of cases in which the Court refused to apply a statutory provision on the grounds of constitutional defect than the list of invalidated laws maintained by the Congressional Research Service. It also includes a new list of cases in which the Court upheld an act of Congress over a constitutional challenge. There are interesting shades of gray on how to think about these cases, but the dataset, the description of variables, and an explanation of how the cases were identified can all be found [here].

--Dan Ernst

Weekend Roundup

• The journal Critical Analysis of Law has published a special issue on Queer Legal Studies. Readers may be interested in the contribution by Gowri Ramachandran (Southwestern Law School), on "The Legal History and Queerer Future of 'Me Too.'"

• ICYMI, PBS's "Frontline" ran an episode this week ("Supreme Revenge") that went "inside the no-holds-barred war for control of the Supreme Court." The episode investigated "how a 30-year-old grievance" (over the Robert Bork nomination) "transformed the court and turned confirmations into bitter, partisan conflicts." Hat tip: Chris Schmidt, who also live-tweeted it.

• The Take Care blog is hosting a symposium on Reproductive Rights and Justice Stories, edited by Melissa Murray, Kate Shaw, and Reva Siegel. Lots of great content has gone up so far.  

• From the Washington Post's "Made by History" section: Matthew Guariglia on "what the loss of the New York police museum means for criminal-justice reform." 

• We join our friends at the Canadian Legal History blog in mourning the passing of Professor Ian Bushnell, a noted historian of the Canadian judiciary.

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

Ernst on the New Deal FCC

My latest, "The Shallow State: The Federal Communications Commission and the New Deal,"  University of Pennsylvania Journal of Law & Public Affairs 4 (May 2019): 403-458, is now available from SSRN and Penn Law's online repository:

Eugene Octave Sykes (LC)

American lawyers and law professors commonly turn to the New Deal for insights into the law and politics of today’s administrative state.  Usually, they have looked to agencies created in the 1930s that became the foundation of the postwar political order.  Some have celebrated these agencies; others have deplored them as the core of an elitist, antidemocratic Deep State.  This article takes a different tack by studying the Federal Communications Commission and its predecessor the Federal Radio Commission, an agency created before the New Deal.  For most of Franklin D. Roosevelt’s first two presidential terms, the FCC languished within the “Shallow State,” bossed about by patronage-seeking politicians, network lobbyists, and the radio bar.  When Roosevelt finally let a network of lawyers in his administration try to clean up the agency, their success or failure turned on whether it could hire the kind of young, smart, hard-working lawyers who had at other agencies proven themselves to be the “shock troops of the New Deal.”  Only after James Lawrence Fly, formerly general counsel of the Tennessee Valley Authority, became chairman and hired lawyers like himself did the FCC set sail.  It cleaned up its licensing of radio stations and addressed monopoly power in the industry without becoming the tool of an authoritarian president or exceeding its legislative and political mandates.

I’m quite grateful to Amanda L. LeSavage, the Editor-in-Chief for Volume 4 of the Journal of Law & Public Affairs, and other members of her staff who worked on what I know was a challenging piece.

Schwartz on Lamazoff on the Bank War

David S. Schwartz, University of Wisconsin Law School, has posted Coin, Currency, and Constitution: Reconsidering the National Bank Precedent, a review essay on Eric Lomazoff’s Reconstructing the National Bank Controversy: Politics and Law in the Early Republic (2018) It is forthcoming in volume 117 of the Michigan law Review (2019):

The constitutional debates surrounding the First and Second Banks of the United States generated the first major precedents regarding the scope of federal legislative powers, and their importance continues to resonate today. Eric Lomazoff's important new book, Reconstructing the National Bank Controversy, is the first scholarly study that views the National Bank controversy as a continuous 55-year sequence of events, whose highlights include the adoption of Alexander Hamilton's proposed Bank of the United States in 1791, John Marshall's decision in McCulloch v. Maryland in 1819, and Andrew Jackson's veto of the Second Bank recharter in 1832. Lomazoff persuasively establishes that a Madisonian consensus supporting the creation of the Second Bank in 1816 " largely overlooked by constitutional scholars " was framed in a way that tried, albeit unsuccessfully, to downplay the Necessary and Proper Clause and the idea of implied powers by emphasizing the existence of a federal power to regulate the national currency, linked to the Coinage Clause. The book review goes on to argue that the National Bank controversy demonstrates that many antebellum partisans of limited enumerated powers -- mainstream Jeffersonian Republicans, Jacksonian Democrats, and even James Madison himself -- were quite happy to work around enumerated powers in order to meet the political demands and objectives of the moment. This lends support to the suggestion that enumerationism (the ideology of limited enumerated powers) was never, in practice, the "true" original meaning of the Constitution.

Newman on Meat Inspection and Public Choice

Patrick Newman, Florida Southern College, has posted another installment of his research on the politics of meat inspection, Public Interest or Public Choice? The Beef Trust and the 1906 Meat Inspection Act:

The Meat Market, 1906 (LC)

This paper challenges the recent research of public interest historians and argues the evidence supports a public choice interpretation of the 1906 Meat Inspection Act. First, the Beef Trust’s slaughter of diseased meat was due to the uncertainty over the science of disease transmission and using it was the only way at the time to make meat affordable to consumers. Second, critics of the Beef Trust’s sanitary practices were often biased and they exaggerated the problem. Third, the evidence is consistent with the argument that the Beef Trust captured the regulation because the law was associated with an increase in their market share, less product choice, and higher meat prices, all of which hurt consumers.

Dan Ernst

Cebul, Geismer, & Williams, eds., "Shaped by the State: Toward a New Political History of the Twentieth Century"

New from the University of Chicago Press (and a collection that this blogger has been eagerly awaiting): Shaped by the State: Toward a New Political History of the Twentieth Century (2019), edited by Brent Cebul (University of Pennsylvania), Lily Geismer (Claremont McKenna College), and Mason B. Williams (Williams College).

A description from the Press:

American political history has been built around narratives of crisis, in which what “counts” are the moments when seemingly stable political orders collapse and new ones rise from the ashes. But while crisis-centered frameworks can make sense of certain dimensions of political culture, partisan change, and governance, they also often steal attention from the production of categories like race, gender, and citizenship status that transcend the usual break points in American history. 

Brent Cebul, Lily Geismer, and Mason B. Williams have brought together first-rate scholars from a wide range of subfields who are making structures of state power—not moments of crisis or partisan realignment—integral to their analyses. All of the contributors see political history as defined less by elite subjects than by tensions between state and economy, state and society, and state and subject—tensions that reveal continuities as much as disjunctures. This broader definition incorporates investigations of the crosscurrents of power, race, and identity; the recent turns toward the history of capitalism and transnational history; and an evolving understanding of American political development that cuts across eras of seeming liberal, conservative, or neoliberal ascendance. The result is a rich revelation of what political history is today.

Via the editors, we also have abstracts for several chapters that seem likely to interest to LHB readers:

The “Black Tax”: Race, Property Assessments, and the Making of the Neoliberal City
Andrew W. Kahrl

Andrew Kahrl focuses on state and local tax policy administration in Chicago and uncovers a variety of bureaucratic and administrative practices used to punish and exploit the poor and politically disfranchised. Providing a new way to think about the tax politics of the 1970s, Kahrl maps unseen sites of discrimination and chronicles the double injury that myths about black tax delinquency and the undemocratic state have perpetuated: abetting a misguided radical anti-tax, pro-market, and anti-government mood that infects both parties and which simultaneously enforces a locally-based, regressively redistributionary tax regime.

Clearing the Air and Counting Costs: Shimp v. New Jersey Bell and the Tragedy of Workplace Smoking
Sarah E. Milov

Sarah Milov offers a different view of the relationship between the state and citizens seeking new forms of political and workplace rights in the 1970s. Focusing on the battle for smoke free workplaces, Milov shows how activists often had to go to war with the unions to which they belonged – unions that otherwise bargained for worker health and safety. Milov uncovers the complex legal, gendered, and bio-political forces that could fuse the interests of worker-activists with corporations concerned primarily with efficiency. Ultimately, Milov argues that the workplace battle she uncovers was less a factor in the eclipse of the New Deal order and was instead a legacy of New Deal era “law, administration, and ideas about health and the environment [that] had expanded the realm of the contestable.” Crucial continuities, in other words, played an overlooked role in creating labor’s decade of crisis. 

A Carceral Empire: Placing the Political History of US Prisons and Policing in the World
Stuart Schrader

Stuart Schrader suggests that looking beyond national boundaries can provide new ways of understanding how the New Deal state evolved over time and ultimately generated what is perhaps the fundamental social and political crisis of our time: the crisis of black, male incarceration. Schrader examines the literature surrounding the “carceral state” and spotlights how the turn toward transnationalism or “the US in the world” has been notably absent. By tracking institutions both inside and outside the state, including law-enforcement agencies and professional organizations, Schrader demonstrates the need for close empirical attention to the transnational dimensions of the carceral state, suggesting that key aspects of the construction of a postwar US empire have come home to roost.

A few blurbs:

“This is an original and unique anthology whose contributions offer theoretically sophisticated reassessments of the subfield of political history. Both capacious and generative, I know of no other work that comes close in offering so many fresh interpretations of twentieth-century US history and revisions of twentieth-century US historiography. The essays are well written and engaging, new and enlightening.” -- Peter James Hudson 

“Shaped by the State brings together a valuable collection of reports from the borderlands where social, cultural, and political history intersect—and reinvigorate—each other.” -- Daniel Rodgers

More information is available here.

Nelson on the Emergency Declaration

Senator Lamar Alexander entered an op-ed by NYU Law’s William E. Nelson, entitled, Trump vs. Congress: The emergency declaration should not be resolved in court, into the Congressional Record yesterday.  Senator Alexander called Professor Nelson as“one of America's foremost scholars of legal history” and reported that the op-ed “explained why it is so important that the President and the Congress should not, in Professor Nelson's words, ‘invert the entire constitutional order where Congress appropriates and the President spends.’”  Cong. Rec., S1613-14  (March 4 2019).  H/t: RAE

Ernst on New Deal Lawyers at AAA

I’ve posted my paper Mr. Try-It Goes to Washington: Law and Policy at the Agricultural Adjustment Administration, which is forthcoming in the Fordham Law Review as part of the symposium “The Varied Roles, Regulation, and Professional Responsibilities of Government Lawyers,” hosted by the Fordham Law Review and the Stein Center for Law and Ethics on October 12, 2018, at Fordham University School of Law:

Jerome Frank (LC)

In December 1933, Jerome Frank, the general counsel of the Agricultural Adjustment Administration but better for writing Law and the Modern Mind (1930), a sensational attack on legal formalism, told an audience at the Association of American Law Schools a parable about two lawyers in the New Deal, each forced to interpret same, ambiguous statutory language. The first lawyer, “Mr. Absolute,” reasoned from the text and canons of statutory interpretation without regard for the desirability of the outcome. “Mr. Try-It,” in contrast, began with the outcome he thought desirable. He then said to himself, “The administration is for it, and justifiably so. It is obviously in line with the general intention of Congress as shown by legislative history. The statute is ambiguous. Let us work out an argument, if possible, so to construe the statute as to validate this important program.” Although the memoranda the two produced were interchangeable, Mr. Try-It wrote his in a fifth the time.

Although the professors in attendance might have nodded approvingly, Frank’s speech, later printed in the Congressional Record, was startlingly impolitic in its muddying of a distinction between law and policy that he insisted upon when battling administrators over the terms of marketing agreements for agricultural commodities. How Frank actually drew the line owed less to his legal realist jurisprudence that the persuasiveness of his two associate general counsels, the radicals Lee Pressman and Alger Hiss.

In this draft, be sure to check out note 190, which apparently discloses the existence of a previously unsuspected Hoover-era experiment in state-sponsored semiotics.

Whittington on the Politics of Impeachment

Keith E. Whittington, Princeton University, has posted A Formidable Weapon of Faction? The Law and Politics of Impeachment, which is forthcoming in Law and Social Inquiry:

This essay draws on recent studies of the federal impeachment power and the issues swirling around the presidency of Donald Trump to consider the law and politics of impeachments. The impeachment process is inescapably political, but that does not mean that there are not constitutional rules, standards and considerations that can and will shape how the politics plays out. The most challenging constitutional questions surrounding the impeachment power relate to the scope of impeachable offenses. It is possible to rule out some possible interpretations of the constitutional language of “high crimes and misdemeanors,” but the standard for impeachable offenses that we are left with will still require contestable political judgment to apply in any particular case. Knowing whether a given act could be regarded as an impeachable offense is only the first step in determining whether an individual should be impeached and removed from office.

Emerson's "The Public Law"

Blake Emerson, UCLA Law School, has published The Public's Law: Origins and Architecture of Progressive Democracy (Oxford University Press):

The Public's Law is a theory and history of democracy in the American administrative state. The book describes how American Progressive thinkers - such as John Dewey, W.E.B. Du Bois, and Woodrow Wilson - developed a democratic understanding of the state from their study of Hegelian political thought.

G.W.F. Hegel understood the state as an institution that regulated society in the interest of freedom. This normative account of the state distinguished his view from later German theorists, such as Max Weber, who adopted a technocratic conception of bureaucracy, and others, such as Carl Schmitt, who prioritized the will of the chief executive. The Progressives embraced Hegel's view of the connection between bureaucracy and freedom, but sought to democratize his concept of the state. They agreed that welfare services, economic regulation, and official discretion were needed to guarantee conditions for self-determination. But they stressed that the people should participate deeply in administrative policymaking. This Progressive ideal influenced administrative programs during the New Deal. It also sheds light on interventions in the War on Poverty and the Second Reconstruction, as well as on the Administrative Procedure Act of 1946.

The book develops a normative theory of the state on the basis of this intellectual and institutional history, with implications for deliberative democratic theory, constitutional theory, and administrative law. On this view, the administrative state should provide regulation and social services through deliberative procedures, rather than hinge its legitimacy on presidential authority or economistic reasoning.

Adler on “The Masses” and the First Amendment

Amy Adler, New York University School of Law, has posted Art's First Amendment Status: A Cultural History of The Masses, which appears in the Arizona State Law Journal:

This Article explores a little-known chapter in the cultural history of The Masses, the radical, iconoclastic, and artistically cutting-edge publication that was the subject of Learned Hand's landmark First Amendment decision in Masses Publishing Co. v. Patten (1917). The Article sets forth the story of an internal battle about freedom of expression in the arts that had shaken The Masses to its core in the year leading up to Hand's famous decision. The Masses was founded on two central premises: first, that absolute freedom of expression was necessary for its mission; and second, that art and politics must be inextricably intertwined in pursuing this mission because creativity was itself an act of political rebellion against capitalism. Yet this marriage between art and politics was a fragile one; indeed it collapsed in the year before Hand's opinion, as editors tried to constrain the political messages of the artists, leading to an artists' strike that forever changed the magazine. At stake in this conflict were urgent questions about the nature of art and the relationship between art and politics. Ultimately the magazine devoted to free speech and free artistic expression - the magazine that would later be pursued by the government for speaking too frankly - set limits on the free expression of its own artists.

By exploring the artistic significance of The Masses and by unearthing this internal censorship battle at the magazine, my goal is to show how the conflict over art at The Masses presaged contemporary debates about the role of art in the First Amendment. The bitter internal struggle over freedom of expression at The Masses anticipated a longstanding problem in free speech law: how do we justify protection for art, often apolitical, irrational, and hard to reduce to a “particularized message,” under a vision of the First Amendment that prizes political discourse and assumes a rational marketplace of ideas. The history of The Masses sheds light on our ongoing discomfort about the place of art in the First Amendment.

H/t: Legal Theory Blog

It's the Alcohol, Stupid!

An advance alert from Cambridge Core has brought news of The American Voter in 1932: Evidence from a Confidential Survey an intriguing article by Helmut Norpoth, Stony Brook University, in PS: Political Science & Politics:

In 1932, the American electorate was surveyed in a poll that has languished in the archives. The survey was conducted by Houser Associates, a pioneer in market research. It interviewed face-to-face a representative cross section about voter choices and issue attitudes. Although conducted on behalf of the Hoover campaign, the poll was not biased in his favor. The most striking revelation is that the electoral sway of the Depression was quite limited. The government was not seen by most voters as the major culprit or as having been ineffective in alleviating it. Even many FDR voters agreed. Moreover, there was no widespread “doom and gloom” about the future. What loomed larger in 1932 was the issue of Prohibition. The American people overwhelmingly favored repeal. The Democratic stand on it—that is, outright repeal—was a sure electoral winner, given Hoover’s staunch defense of Prohibition.