"Who Owns Civil Rights History?" by Chang and Lovelace; response by Gross

Volume 106 of the Boston University Law Review includes the article "Who Owns Civil Rights History?" by Robert S. Chang (UC Irvine School of Law) and H. Tim Lovelace, Jr. (Duke Law School). The abstract:

In this Article, Professors Chang and Lovelace argue that affirmative action litigation is not simply about college admissions but about putting America’s racial history—and future—on trial. They highlight the critical role that the Supreme Court plays in constructing our nation’s collective memory in which it operates, functionally, as a court of history. At stake is historical memory, which is used to produce the instant outcome but which then contains and constrains future possibilities. The litigation results in an “opinion of the Court” written by the victors. The word “opinion” belies the power that the victors have in
narrating the official history, which becomes authoritative in our precedent- based system. As a result, racial justice is being written out of the official civil rights history narrated in the “opinion of the Court." 

In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Court’s opinion does not use the word “affirmative action,” which allows Chief Justice Roberts to ignore how affirmative action was a critical part of the civil rights movement. This erasure allows him to characterize the civil rights movement and Brown v. Board of Education as if they were only ever animated by fealty to colorblindness. Part of constructing this revisionist civil rights history includes a repudiation of Korematsu v. United States. The Court, in essence, retroactively applies strict scrutiny to arrive at the conclusion that
Korematsu had been wrongly decided at the very moment that it applies strict scrutiny to Harvard’s and the University of North Carolina’s admissions policies to wipe out what it perceives to be the stain of race-conscious affirmative action. It asserts that this is precisely what Brown called for and requires. This parallelism in the application of strict scrutiny to the very disparate circumstances of Japanese American incarceration during World War II and affirmative action in selective college admissions becomes a central feature in the new challenges to race-conscious affirmative action at our nation’s military academies. This Article explores the invocation of Korematsu and Brown by litigants and the Court. It offers a corrective history of affirmative action to counter the Court’s erasure of that history.

The article is followed by a response by Ariela Gross (UCLA Law), titled "Erasing, Remembering Colorblindness." The response "expand[s] on" the article's "observations regarding the constitutional memory-work of SFFA, placing Chief Justice Roberts’ story in the broader context of the conservative movement’s memory of Brown and a colorblind Constitution." It "conclude[s] with a few thoughts regarding the alternative civil rights history Chang and Lovelace sketch that places affirmative action at its center." 

-- Karen Tani  

Hanna on Colvin's Bus Protest

Mark Hanna has published From Claudette Colvin’s expectation to bus desegregation in Browder v Gayle in the American Journal of Legal History:

In March 1955, 15-year-old Claudette Colvin refused to move from her seat on a Montgomery bus, setting in motion a chain of proceedings that culminated in the Supreme Court’s summary affirmance in Gayle v Browder. This article reconstructs a legal history of rights formation that begins from Colvin’s persistent expectation of equal treatment under the law and traces how that expectation moved through a dense procedural field and complex socialmovement infrastructure before stabilizing as a Fourteenth Amendment right in the desegregation judgment. The article situates this account within rights-consciousness scholarship, treating rights as historically situated, bottom-up constructions, but specifies normative expectations—expectations that resist adaptation to disappointment and are legible in contemporaneous records—as its core unit of analysis. Using arrest records, trial papers, pleadings, hearing transcripts, judicial orders, organizational minutes, correspondence, interviews, and contemporary media reports, it tracks how Colvin’s expectation moved through juvenile proceedings, movement strategy, and federal procedure into a ruling that dismantled Montgomery’s bus-segregation regime and helped shape the constitutional law of public transport, while analysing the legal and procedural mechanics deployed to obstruct desegregation and the strategic choices that overcame them. It concludes by sketching a legal-history method for studying rights formation that keeps grassroots expectations and their procedural trajectories in view, and uses that vantage to clarify how movement strategy, judicial practice, and the emergence of constitutional rights are linked in struggles against racial discrimination in public space. While consistent with accounts that emphasize the interaction of litigation and protest, the article’s central focus is on how grassroots expectations of constitutional right at the ‘bottom’ of a legal order can, in rare but illuminating cases, come to be stabilized at its apex.

--Dan Ernst 

Bridges on Originalism without History

Khiara M. Bridges, UC Berkeley School of Law, has published the review essay Originalism Without History in the Yale Law Journal:

Originalism, the Supreme Court’s ascendant theory of constitutional interpretation, claims to dive deep into the historical archives to divine the meaning of the Constitution. However, one of the greatest ironies of originalism is that while it claims to be intensely interested in history, it eschews much of the past in practice. Originalists often rely on the assumption that only a thin slice of history matters. The archives before and after a particular moment—namely the Founding and the few years surrounding the ratification of the Reconstruction Amendments—are, as a matter of constitutional interpretation, regarded as irrelevant. Moreover, even during the narrow band of years germane to originalist analyses, the histories created by the vast majority of historical actors—that is, nonelites—are typically treated as immaterial to the interpretive endeavor. In this way, originalism suppresses much of history through its veneration of history.

Fascinatingly, there is a similarity between originalism and the assault on history currently taking place in the United States more broadly—an assault that was first framed as a struggle against “Critical Race Theory,” or “CRT,” but has since evolved into a struggle against diversity, equity, and inclusion, or DEI. Like originalism, the fight against “CRT” and DEI suppresses history—particularly, marginalized people’s histories—through its veneration of a mythologized version of this country’s past. This Review excavates the twin processes of historical suppression and veneration occurring in the judicial sphere and the larger political sphere in which the judiciary is embedded, and it situates the histories of constitutional transformation provided in Jill Lepore’s We the People and Akhil Reed Amar’s Born Equal within the contemporary war on history.

 --Dan Ernst

Weekend Roundup

• 

  William Howard Taft (LC)

  Andrea Scoseria Katz on "Taft at the Beach: What the Supreme Court Misses About a Key Unitary Executive Precedent" (Can We Still Govern?) 

• Michael Dreeben looks back at Humphrey's Executor (Just Security). 

• Martha Jones's illustrated story in the New York Times Magazine on Elizabeth Freeman, who sued for her own freedom, is here. 

• That Modern Criminal Law Review workshop, "Ancient Criminal Law: A Global Perspective," may be viewed here and just heard here.  

• A notice of the "Slavery and the Judiciary Collection" of the Law Library of Congress, which "provides digital access to more than one hundred books and manuscripts documenting issues related to slavery and the courts from 1740 to 1860." Also from the hardworking law librarians of Congress: "Code and Policy in Action: Shared Legislative Targets Between the Yurok and Other Sovereign Entities," and Nathan Dorn, Rare Books Curator, continues his series of posts on Anglo-American natural law theorists with "A Textbook for the Laws of Nature’s God: Thomas Rutherforth’s Institutes."

• On July 16, 2026 at 2:00 PM ET, the Foreign and Comparative Law Webinar Series of the Law Librart of Congress will host the webinar Colonialisation, i, and an Unwritten Constitution: Understanding Aotearoa/New Zealand’s Legal System, presented by visiting scholar, librarian, and American Association of Law Libraries Schaffer Grant recipient, Theresa Buller, who is the subject librarian for law and criminal justice at the University of Canterbury in Christchurch.

• A notice of "Myths and Misunderstandings in Modern Irish History," by Patrick Geoghegan, the 2026 Hardiman lecture at the Supreme Court (Law Society Gazette). 

• A Q&A with Hadar Aviram's Behind Ancient Bars: Narratives of Incarceration in the Hebrew Bible (University of California Press) (UC SF Law). 

• Michael Dorf asks What Weight, If Any, Should Be Given Racist Laws In A History-and-Tradition Test? (Dorf on Law.)

• Nineteenth-Century NY Law and Birthright Citizenship: New York v. Miln (1837) (New York Almanack).  

• A notice of Stacey Patton's Strung Up: How White America Learned to Lynch Black Children (Beacon Press, 2026) (New York Almanack).

• "Reflecting on America’s 250th anniversary: Revolution, the Constitution, and the founders" in the Princeton University Press's list (PUP).  And, while we're at it, Princeton University and the Revolution.  

• Lawbook Exchange's June 2026 list in Scholarly Law and Legal History.   

• State Constitution Roundup: What made Pennsylvania's first ever constitution so radical that it only lasted 14 years?  (WHYY).  1776 NC Constitution exhibit [is] part of ‘Capitol 250’ July 4 fest (Coastal Review).  Bayard v. Singleton: Judicial review’s NC origins (Carolina Journal).  The Hawaii Constitution (State Court Report). 

• ICYMI: HIAS's illustrated history of US immigration (HIAS).  Eugene V. Debs, Constitutional Voice (NCC).  An appreciation of Raphael Lemkin, "the author of the concept of genocide" (UJE).  Benjamin Perry and the fight against secession (Greenville Journal). 

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

Book Event: Taxation, Racial Capitalism, Slavery and International Law

[We have the following announcement.  DRE]

Taxation, Racial Capitalism, and the International Rule of Law: From Colonial Slavery to Global Governance

Wednesday, July 22, 2026, 12:00–1:30 PM EST.  This webinar brings into dialogue two important recent books:

The Human Toll: Taxation and Slavery in Colonial America by Anthony C. Infanti (University of Pittsburgh School of Law)

Racial Capitalism and International Tax Law: The Story of Global Jim Crow by Steven A. Dean (Boston University School of Law)

The discussion will explore how legal and fiscal systems have historically contributed to structures of domination, exclusion, and racialized inequality, from the fiscal architecture of colonial America to the contemporary global tax order. By placing these works in conversation, the webinar examines the relationship between taxation, racial capitalism, historical injustice, and the rule of law, while reflecting on the capacity of legal institutions to address past and present inequalities.

The event will be chaired by Paolo Davide Farah (The University of Tulsa College of Law), who will serve as moderator and discussant. Carliss N. Chatman (SMU Dedman School of Law) will also serve as discussant.

The conversation may be of particular interest to scholars working in taxation, international law, comparative law, legal history, civil rights, critical legal studies, race and the law, socio-economics, political economy, international human rights, and related fields.  Participation is free and open to all.  [Register here.]

Altschuler's "Before Disability"

Sari Altschuler, Northeastern University, has published Before Disability: A History of American Citizenship (University of Pennsylvania Press):

The history of disability rights is often told as a recent one, but it is not. In the wake of the American Revolution, many of the differences we now call disabilities could be accommodated into citizenship—and for some even exemplified its promises. By the antebellum period, however, disability was becoming a powerful, racialized tool of civic exclusion and, by the century’s end, a target for eugenic elimination. In Before Disability, Sari Altschuler tells the story of how this dramatic transformation occurred.

Before Disability is a literary, legal, and cultural history of the relationship between disability, race, and citizenship. It shows how disability helped to shape US citizenship and, in turn, how the formation of US citizenship shaped disability. There were two key drivers of the transformation from accommodation to exclusion and eugenics: the difficulty aligning the reality with the rhetoric of civic inclusion and the co-opting of mental and physical difference as evidence in debates about Black citizenship. The stigmatizing ways race came together with mental and physical difference to deny Americans rights were, however, not inevitable.

Before citizenship was federally defined in the late 1860s, Americans were still working out what it meant. They used the narrative forms available to them—from melodrama and the gothic to the slave narrative and the criminal confession—to do this work. While possibilities narrowed by the antebellum era, Americans continued to imagine, articulate, and enact broader definitions. As we seek to imagine the relationship between disability and citizenship more equitably and expansively for ourselves, we should begin by remembering that many disabled and nondisabled Americans before us did, too.

--Dan Ernst 

Weekend Roundup

• 
  ASLH President Mitra Sharafi discusses Fear of the False, "her new book about colonial South Asia's critical role in the development of forensic science" on Law in Action, the podcast of the University of Wisconsin Law School.   

• From the American Historical Association's Perspectives on History: John Fea (Messiah University) on "Historical Thinking, AI, and the Formation of College Students." 

• Another memorial to the late Gordon Wood, via History News Network x Bunk History. 

• "The History, Archives, and Records Preservation Project (HARPP) has released 'The Federal Assault on History: A Record of Executive Actions,' the first comprehensive report documenting and analyzing the Trump administration’s sweeping, coordinated effort since January 2025 to reshape how the American past is recorded, preserved, and shared with the public" (OAH).

• Steven Hahn reviews Born Equal: The Remaking of America’s Constitution, 1840–1920
  by Akhil Reed Amar (The Nation). 

• Via H-Disability: a memorial to Richard K. Scotch, author of multiple landmark histories of disability law and policy. 

• A call for papers for a conference on the Legal History of Tamilnadu.  Deadline for abstracts: June 15.  

• The conference "Rebellion, Resistance, and Refuge: Slavery and Border-Crossing during the American Revolution" will take place at UMass Amherst from Thursday, July 9 to Sunday, July 12, 2026 (H-Law).

• "Students from Stanford Law School’s Center for Racial Justice recently helped bring Wong [Kim Ark]’s story to life through a Bay Area public-history project that joins law, art, and community memory" (Stanford Lawyer).  

• U.S. Representative French Hill has introduced a bill to require the Department of the Interior to study the preservation and incorporation into the National Park System of the home of Scipio Jones (QQ) 

• A recording of the webinar, Equality and Exclusion: Israel's Constitutional Order and Its Palestinian-Arab Minority (1948–2025), with Ofra Bloch, moderated by Jon D. Michaels (UCLA).

•  ICYMI: Eric Segall asks that we "Please Stop Calling the Roberts Court Justices Originalists" (Dorf of Law). Jamelle Bouie discusses the so-called "Colored Conventions" of the nineteenth century in arguing that "The Supreme Court Doesn’t Own the Constitution" (NYT).

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

Weekend Roundup

• Via the American Branch of the International Law Association (ABILA): a recording is now available of the recent webinar on "Indigenous Legal Orders, Legal Pluralism, and the Coloniality of Method Across Comparative Law, International Law, IP, and Trade Governance."

• From In Custodia Legis (the blog of the Law Library of Congress): "Introducing Chew Heong and Chinese Exclusion: A New Story Map from the Law Library"; "Supporting Art Through Hardships: The Federal Theatre Project." 

• ICYMI:  The lower house of the Rhode Island legislature has unanimously approved a bill to rescind the state's "approval–in May 1861–of a proposed amendment to the U.S. Constitution that would have permanently protected slavery from federal interference" (Providence Journal).  The Supreme Court’s long history of racial profiling in immigration (SCOTUSblog). The "idea of changing the number of Supreme Court justices is hardly new" (NCC)--just ask Rachel Shelden, who says as much in Made by History (now behind a paywall at the Philadelphia Inquirer).

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

Weekend Roundup

• Sally Hadden, Western Michigan University, will speak on “The First Massachusetts Constitution and How Town Actions Derailed It,” online at noon today as the first in the Bidwell House Museum's series of history talks.  It is free for members of the museum and $15 for others.  Register here.

• A review symposium on Serena Mayeri’s Marital Privilege: Marriage, Inequality, and the Transformation of American Law, with contributions from Albertina Antognini, Cary Franklin, Jessica Dixon Weaver, Deborah Dinner, Linda C. McClain, and Katie Eyer, with a response by Professor Mayeri (BU Law Review Online).  

• Marlene Trestman will be in conversation about her book, Fair Labor Lawyer: The Remarkable Life of New Deal Attorney and Supreme Court Advocate Bessie Margolin, in person and online, with Senior Judge Beryl A. Howell of the US District Court for the District of Columbia at the Capital Jewish Museum in DC on June 4, from 6:30-7:30.  Register here.

• Bill Littlefield reviews Gautham Rao's White Power: Policing American Slavery (arts fuse).

• Jonathan Parry reviews H.S. Jones’s Liberal Worlds: James Bryce and the Democratic Intellect (London Review of Books).

• Robert Tsai and others will discuss John Brown's provisional constitution on June 29. 

• Rodger Citron on that podcast with Samantha Barbas on her book on New York Times v. Sullivan (Verdict).   

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

Rao's "White Power"

It is publication day for White Power: Policing American Slavery (University of North Carolina Press), by Gautham Rao.  The book is the initial entry in the UNC Press’s new series, W. Hodding Carter III Books:

Beginning in the colonial era and growing through the American Revolution and the Southern plantation system, slaveholders’ violent police regime continued after Emancipation, through Reconstruction, to today. Moving across time, space, and place, White Power uncovers how slaveholders created their own white supremacist police and government to deny Black people rights, power, and humanity.

Legal historian Gautham Rao introduces us to laws that empowered white people to forcibly exercise their desired racial superiority over Black people, shows how they spread from the South throughout the nation, and traces the rebellions, fugitivity, activism, and legal systems that challenged them. Rao’s narrative includes slaveholders, lawmakers, and the Ku Klux Klan, dramatic escapes by runaway enslaved people, abolitionist activism in courtroom showdowns, and pitched battles between white paramilitaries and enslaved rebels. He offers a new interpretation of the history of policing in the US, centering the institution and legacy of slavery and speaking to the origins of today’s persistence of white vigilance, white supremacist militia groups, and white racist cops determined to maintain power over Black people by force. Equally determined, however, was Black Americans’ refusal to accept it. 

DC-area folks can catch Professor Rao in conversation on White Power with the Library of Congress's Ryan Reft at 6:30 tonight at People's Book in Takoma Park, Maryland. 

–Dan Ernst

Weekend Roundup

• 
  Katrina Jagodinsky, University of Nebraska-Lincoln, will be addressing the Department ofHistory and School of Law at the University of Oregon on May 19, from 3:30-5:00 on "Petitioning for Freedom: Habeas Corpus in the American West, 1812-1924," based on her Mellon-funded, NSF supported digital initiative on U.S. Law and Race.

• We have two reports of Maggie Blackhawk's discussion at Dartmouth College on May 6 of "the centrality of American colonialism and Native American history to legal understandings of the United States Constitution (The Dartmouth; Dartmouth News).  

• Lucy Salyer, University of New Hampshire, explains Wong Kim Ark and birthright citizenship on NBC News' "Here's the Scoop" (YouTube).

• Rebecca Tushnet's 2025 Nies Lecture on Intellectual Property at Marquette Law School, entitled  “History and Tradition in First Amendment Intellectual Property Cases” is here.

• That symposium over at Balkinization on Stephen Skowronek's The Adaptability Paradox is now complete and is available here.

• More on the litigation over the executive order curtailing the Presidential Records Act: Jonathan Shaub scores the government lawyers who defended the executive order (Lawfare).  The American Historical Association explains a recent hearing in the dispute.  

• Michael C. Blumm, Lewis and Clark Law School, has posted the preface, table of contents, and first chapter of the second edition of his West Nutshell, A Brief American Legal History, which surveys "American legal history from the Colonial Era to the Trump administration, including an extensive chapter on the first six months of the second Trump administration." 

• John O. McGinnis reviews The Making and Breaking of the American Constitution: A Thousand-Year History by Mark Peterson (Law & Liberty). 

• ICYMI:  Florida’s new history course whitewashes the founders on slavery (Salon)

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

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

Weekend Roundup

• Over at JOTWELL, we've noticed several reviews of interest: Maya Manian (American University Washington College of Law) wrote about Aziza Ahmed's Risk and Resistance: How Feminists Transformed the Law and Science of AIDS (2025); Martha Ertman (University of Maryland Francis King Carey School of Law) reviewed Dorothy Brown, Getting to Reparations: How Building a Different America Requires a Reckoning with Our Past (2026); Jedidiah Kroncke (University of Hong Kong) spotlighted María E. Montoya's A Workplace of Their Own: Rockefeller, Roche, and Labor's Battle Over Industrial Democracy (2026). 

• The California Law Review's podcast has posted an episode on Michael Banerjee's "What Harvard’s Lawsuit Should Have Said" (published in the journal's online companion in August 2025).

• On the history-of-higher-ed theme, Banerjee also alerted us to this interesting Portland Press Herald article, on "How Maine’s elite private colleges sold Wabanaki land to bankroll early construction."  

• Vicki Jackson, HLS, delivered the  2026 Malyi Lecture at the University of Chicago Law School on “Knowledge Institutions and Constitutional Democracy.”   

• Jack Rakove will speak on Theory of Constitutional Failure: The American Case at Notre Dame Law on Friday, April 24, 2026, from 2:00 pm - 3:00 pm.

• Congratulations to Kunal Parker, Miami Law, on his selection as Beatrice Webb Visiting Professor at the London School of Economics! 

• And congratulations to Edward J. Balleisen, the new Provost of George Washington University! (GW Today)

• Nathan Dorn on Lodovico Carerio: Heresy, Lawbooks, and the Inquisition in the Kingdom of Naples (In Custodia Legis).   

• Haris A. Durrani, a Prize Fellow in Economics, History, and Politics at Harvard University, has published Engineering the Law: The Complicated Legal History of a Satellite in the American Historical Association's Perspectives on History.

• "The 1874 Arkansas Constitution and records from the convention that produced it are now available online through a collaboration between the University of Arkansas Libraries and the Quill Project at the University of Oxford" (Arkansas News) 

• Lawbook Exchange's April catalogue of Scholarly Law and Legal History.     

• The National Constitution Center has announced the opening on May 15 of "Governing the Nation, a new permanent gallery exploring the Constitution’s system of separated powers."  Its development was guided by "a distinguished scholarly advisory board representing leading universities and research institutions, ensuring a rigorous and balanced exploration of the separation of powers and federalism," including H. W. Brands, Cristina Rodríguez, Yuval Levin, Michael Klarman, Gail Heriot, and Ilan Wurman.

• Deborah Rosen reviews Andrew Fede's A Degraded Caste of Society in the Journal of Southern History.

• That E.O. on the PRA:  The American Historical Association and American Oversight file suit (CBS News).  The Trump Administration Is Trying to Erase Its Own History (Atlantic Daily).  Joyce Vance with the court filing (Civil Discourse).  The AHA's notice of the lawsuit.

• More on Birthright Citizenship: Steve Vladeck, Georgetown Law, on the "pitched battle within the legal academy over the fairly transparent efforts of a small cohort of right-wing law professors to provide a fig leaf of historical support for the Trump administration’s legally and morally odious position in the birthright citizenship case" (One First). Philip Hamburger, Columbia Law, on Allegiance, Birthright, and Citizenship (Law & Liberty).  For a brief time only, you may read, open access, the introduction to Anna O. Law's Migration and the Origins of American Citizenship, here.

• ICYMI:  In the National Constitution Center's series, "Constitutional Voices": W.E.B Du Bois and Elizabeth Cady Stanton.  Kevin Kruse rethinks the Civil Rights Movement (Campaign Trails).

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

Kohtz on a Successful Challenge to an Indian Boarding School

Rong Kohtz, a historically minded attorney-at-law, has posted In re Lelah-Puc-Ka-Chee: A Case Study on the Americanization of Law in the Heartland, 1898-1908:

Lelah Puc-Ka-Chee (SHSI via Wiki)

From 1899 to 1908 in Iowa, the Meskwaki people and their local allies repeatedly defeated forcible removal of their children to a federal Indian boarding school in a series of legal actions during the zenith of hostile assimilation.  The case of Lelah-Puc-Ka-Chee was the first one of these cases.  The Meskwaki’s legal victory unsettles the prevailing historical account that casts Indigenous peoples as passive and reactionary to the U.S.’s assimilationist Indian policies and calls for re-examination of Indigenous Americans’ role in the evolution of American law.  By examining the power dynamics in the cases regarding Lelah-Puc-Ka-Chee, this essay investigates how far was the reach of the colonial administrative and judicial powers in the lives of Indigenous families and individuals, and what forces accelerated, slowed, or redirected the colonial powers in the domestic sphere at the local level.  In this exploration, the essay finds powerful Indigenous forces in the Americanization of law, and Indigenous Americans role as progenitors of a pluralistic American polity. 

--Dan Ernst

Hamilton's "Nothing Less Than Equality"

Tikia K. Hamilton, Loyola University Chicago, has published Nothing Less Than Equality: The Battle over Segregated Education in the Nation’s Capital (University of Chicago Press):

The landmark Brown v. Board of Education case, which barred racial segregation in American public schools, wasn’t the only path for Black parents, teachers, and activists who sought equality of educational opportunity. Some believed that the solution to inequality lay in pressing the federal government to live up to the Jim Crow doctrine of “separate but equal” by providing more resources to Black schools. And for a time, this seemed true in Washington, DC, where Black activists leveraged their status as residents of the nation’s capital to advocate on behalf of Black education. However, disappointments with the “separate but equal” strategy and a sea change in activism led to an embrace of integration.
 
In Nothing Less Than Equality, Tikia K. Hamilton reveals the rich and complex history of educational activism in Washington prior to Brown v. Board of Education, illuminating complex dynamics that provide a counterpoint and backdrop to the landmark Supreme Court case. Hamilton thoroughly examines the multipronged strategies employed by parents, teachers, attorneys, and activists to democratize education, demonstrating that there was no linear path to Brown. 

--Dan Ernst 

Weekend Roundup

• An alarming opinion of the Office of Legal Counsel of the US Department of Justice advising White House Counsel that the Presidential Records Act is unconstitutional.  WaPo's story is here.

• 
  Having written about two thirds of a history of a law school, word of a new contribution to the genre always intrigues me.  Here's a notice of Legal Education at the University of Virginia: Tradition and Transformation (University of Virginia Press).  DRE

• In the American Prospect: Felicia Kornbluh (University of Vermont) writes about the Supreme Court's recent decision in Chiles v. Salazar (involving a Colorado ban on "conversion therapy"). The piece also quotes legal historian Marie-Amélie George (Wake Forest University Law School). 

• Via Brian Rosenwald: "Made by History" has a new home. Going forward, it will partner with the Philadelphia Inquirer. New pitch email: madebyhistory@inquirer.com.  

• On Friday, April 10, Alejandro de la Fuente, Harvard University, will deliver the sixteenth annual Presidential Lecture at Tufts University on Slavery, Freedom, Race, and the Law in the Americas.  The lecture will be based on his and Ariela J. Gross’s book, Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana (THR).

• Over at Divided Argument, William Baude hosts a roundtable with Christian Burset, Jonathan Green, and Ryan Snyder on their recent articles, which Baude describes as some of the best contributions to a "recent round of scholarship on history and tradition in legal interpretation."    

• And over at Modern American History, Sarah Seo hosts a roundtable of historians to discuss  "the benefits of and challenges to translating historical scholarship for a legal audience."  With Laura Edwards, Jennifer Mittelstadt, Samuel Erman, Nathan Perl-Rosenthal, Maggie Blackhawk and Ned Blackhawk.

• G. Edward White discovers who pranked the U.S. Supreme Court "by filing a phony cert petition challenging an absurd DC noise ordinance" (Oyez).

• That symposium over at Balkinization on Stephen Skowronek's Adaptability Paradox continues, with, among other contributions, Jeremy Kessler's Material Foundations of American Constitutional Development. 

• The latest issue of the Journal of American History includes several articles of interest to legal historians, including One Person, One Vote? The Gap between Representative Equity and Mathematical Equality after Baker v. Carr, by Alma Steingart, which shows how "litigants, Supreme Court justices, judges, and mathematical experts struggled to align the theoretical concept of political representation with mathematical notions of equality" in the malapportionment cases of the 1960s. 

• The NYT review of Mark Peterson's The Making and Breaking of the American Constitution: A Thousand-Year History (Princeton University Press) and a blog post by the author.

• The April 2026 newsletter of the Historical Society of the District of Columbia Circuit is here. 

• More on Birthright Citizenship.  John Yoo says that it has a long historical precedent (AEI).   Kate Masur  "Fact-Checks President Trump’s Birthright Citizenship Order" (CBS Chicago).  John Mikhail on Jurisdiction, Domicile, and the Ratio Decidendi of Wong Kim Ark (Balkinization).  Yet another dispatch from the war between the law professors on the history of the citizenship clause.  (Courthouse News Service).  And has the distance between law professor Bluesky and NYT opinion page ever been shorter? 

• ICYMI: A new book on Sarah Keys Evans, "The Black Veteran Who Desegregated Interstate Buses" (Mother Jones).  Tom Lee on the Declaration of Independence at 250 (Fordham Law). A Century of Colonial Tariffs (LPE Project).  High school students explore Münster’s legal history (Universität Münster).

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

Weekend Roundup

• The Asian Legal History Association has hosted its official launch in Hong Kong (The Standard).  The speech of the Secretary for Justice, Paul Lam, at the launch is here. Update: Donal Coffey was there, too.

• Ian Mansfield's review of the exhibition, Londoners on Trial: Crime, Courts and the Public 1244-1924, at the London Archives until February 25, 2027.

• From the Conversation: "The deaf blacksmith who married in 1576 – and the history of sign as a legal language."

• Over at JOTWELL: Blake Emerson (UCLA Law) has posted an admiring review of Nathaniel Donahue's "Officers at Common Law," which is forthcoming in the Yale Law Journal.   

• Ashley Everson on Pauli Murray, the Brown Decision, and the Struggle for Equal Rights (Black Perspectives).

• A notice of Akhil Reed Amar's Giannella lecture at Villanova on Born Equal: Remaking America’s Constitution, 1840–1920 (Villanovan). 

• Five Takeaways from conference on Richard Primus’s The Oldest Constitutional Question  (Michigan Law). 

• Now online: the website of the 14th Amendment Center for Law and Democracy at Howard Law School, led by Sherrilyn Ifill.

• ICYMI: Birthright Citizenship Edition.  Dahlia Lithwick spoke to Anna O. Law about Law's book, Migration and the Origins of American Citizenship (Amicus). Ilya Somin on Slavery and Birthright Citizenship (Lawfare).  Smita Ghosh on Lynch v. Clarke (1844), the birthright citizenship case you never heard of (Slate). Akhil and Vikram Amar and Jason Mazzone on why the text, history, and structure of a landmark 1952 statute doom Trump’s executive order (SCOTUSblog). 

• ICYMI: Orin S. Kerr on How AI Tools Can Help With Legal History Research (Volokh Conspiracy). "The Trump administration’s campaign to remove National Park Service exhibits that 'inappropriately disparage' historical figures" has bogged down (Politico).

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

Law's "Migration and the Origins of American Citizenship"

The official date is still about a week hence, but because the book is already getting noticed in social media, we’ll note now the imminent publication of Anna O. Law’s Migration and the Origins of American Citizenship: African Americans, Native Americans, and Immigrants (Oxford University Press):

Since the late nineteenth century, the US federal government has enjoyed exclusive authority to decide whether someone has the ability to enter and stay in US territory. But freedom of movement was not guaranteed in the British colonies or early US. By contrast, voluntary migrants were met with strict laws and policies created by colonies and states, which denied free mobility and settlement in their territories to unwanted populations.

Migration and the Origins of American Citizenship presents a story of constitutional development that traces the confluence of the logics of slavery and settler colonialism in early legal rulings and public policy about migration and citizenship. The book examines the division of labor between the national and state governments that endured for over a century, reasons why that arrangement changed in the late nineteenth century, and what the transformation meant for people subject to those regimes of control. Drawing into one study the migration policy histories of groups of people that are usually studied separately, and combining the methodologies of political science, history, and law, Anna O. Law reveals the unmistakable effects of slavery and Native American dispossession in modern US immigration policy.

--Dan Ernst 

Aikin on US v. Neeley

Joshua Aiken, American Bar Foundation Doctoral Fellow in Law & Inequality, has posted She Had Slain Her Favorite: Race, Gender, Violence, and the Rule of Law in the Military-Occupied South:

This Article excavates the 1865 trial United States v. Temperance Neely to analyze how emergent legal cultures in the military-occupied South calcified racial slavery's logic despite formal emancipation. Through examination of previously unanalyzed court proceedings, I demonstrate how this case illuminates three interlocking dimensions of postbellum jurisprudence: legal systems simultaneously acknowledged Black life while preserving white authority through plantation logics that naturalized Black women's subordination; violence against Black women and extraction of their labor became integral to reproducing social conditions necessary for racial-economic order; and Black witnesses' testimonies, though formally admitted, revealed systemic patterns that rendered Black women's experiences unintelligible within emergent legal frameworks. Drawing on the theoretical insights of Anthony Paul Farley, Saidiya Hartman, and Hortense Spillers, I observe the persistence of 'white-over-black' ideology through an "American grammar" of formal equality, liberal rights, and the "law's calculation of personhood.” Situating the Neely case in scholarship on the Reconstruction Era, Marxist feminism, Black women’s history, I consider how formal legal reasoning relied on notions of gendered sentiment, character, and subjectivity to privilege white sentiment and justify racial unfreedom. Attending the immediate post-surrender South, my reading emphasizes how legal actors allowed Black women’s bodies to be contested sites of meaning, through which categories of race, gender, and labor might be explored. Challenging conventional understandings of the rule of law, I reconceptualize the rule of law as deference to legal institutions that transmute historical subjugation into contemporary unfreedom sanctioned by the state. By reading “along the bias grain” of the legal archive, this investigation reveals how postbellum legal frameworks positioned Black women as objects rather than subjects. This case illuminates the constitutive role Black women’s labor played in reconstructing American society and the continuities between nineteenth-century rationalization of violence and the ability of contemporary legal systems to respond to Black people’s injuries and claims. 

--Dan Ernst 

Gans on Black Conventions during Reconstruction

David Gans, Constitutional Accountability Center, has published Forgotten Framers: Black Conventions and the Second Founding, which is forthcoming in the Stanford Law Review:

This Article tells the forgotten story of the Black Conventions of the Reconstruction era, examining convenings of Black Americans across the nation during the time when the Thirteenth, Fourteenth, and Fifteenth Amendments were under consideration. Invoking the promises of liberty and equality contained in the Declaration of Independence, these conventions insisted on Black Americans' right to respect and dignity, fought for control of their bodies and their right to be full members of the body politic, including at the polls, and demanded an end to racial prejudice and violence that kept them in a subjugated status. Through their relentless activism, Black Americans repeatedly pressed white Americans to make the United States into a multiracial democracy that guaranteed fundamental rights, protection, and equal citizenship as an American birthright. In large measure, the Amendments that produced our Second Founding bore the imprint of this constitutional activism. 

While critical to understanding the meaning of the Reconstruction Amendments, this history has never gotten its due. Dominant judicial and scholarly accounts of the text and history of the Reconstruction Amendments privilege elite white understandings, presenting history as if white voices were the only ones that mattered. As this Article demonstrates, this impoverishes our understanding of the Reconstruction Amendments and ignores how the Black Convention movement of the Reconstruction era shaped the transformational guarantees in those Amendments. Grappling with the work of the Black Conventions can help generate an inclusive constitutionalism, deepen our understanding of the text and history of the Reconstruction Amendments, provide resources to resolve current constitutional disputes, and help recover fundamental constitutional principles the Supreme Court has long betrayed.  

--Dan Ernst