Showing posts with label Rights. Show all posts
Showing posts with label Rights. Show all posts

Monday, October 20, 2014

Turner, "Rights and the Ambiguities of Law: Infanticide in the Nineteenth-Century U.S. South"

The September 2014 issue of the Journal of the Civil War Era includes an article of interest: "Rights and the Ambiguities of Law: Infanticide in the Nineteenth-Century U.S. South," by Felicity Turner (Armstrong State University). Here's a summary from the author of the article's primary contribution:
Building on recent scholarship in gender history and African-American history, “Rights and the Ambiguities of Law” argues for a rethinking of the utility of narratives about the inexorable march toward expanded rights in U.S. history and memory.  Turner suggests that constitutional scholars and legal historians have traditionally emphasized the valuable expansion of civil and political rights to African Americans inaugurated at the federal level during Reconstruction.  The federal legislation and constitutional amendments prompted change at the state level, primarily in the South, which—in turn—prompted legal change at the local level, the consequences of which have been largely unexamined.  Turner's argument combines the traditional emphases of legal and political history with the more recent scholarship from historians of women and African-Americans.  Drawing from these combined strands of scholarship, Turner demonstrates the limitations inherent in narratives focusing primarily on the politico-legal changes that occurred at both the federal and state level during Reconstruction.  Using infanticide cases from antebellum and Reconstruction North Carolina to examine the operation of the legal process within local communities, "Rights and the Ambiguities of the Law" illuminates the complexities and ambiguities of legal change over time. 
A brief excerpt is available here, at Project Muse. Full content is limited to subscribers.

Thursday, September 18, 2014

Volk's "Moral Minorities"

Although Emily has already noted the publication of an excerpt on Slate, we ought to have fully noticed the publication by Kyle G. Volk, University of Montana, of Moral Minorities and the Making of American Democracy (Oxford, 2014).  Here is a summary:
Should the majority always rule? If not, how should the rights of minorities be protected? In Moral Minorities and the Making of American Democracy, historian Kyle G. Volk unearths the origins of modern ideas and practices of minority-rights politics. Focusing on controversies spurred by the explosion of grassroots moral reform in the early nineteenth century, he shows how a motley but powerful array of self-understood minorities reshaped American democracy as they battled laws regulating Sabbath observance, alcohol, and interracial contact. Proponents justified these measures with the "democratic" axiom of majority rule. In response, immigrants, black northerners, abolitionists, liquor dealers, Catholics, Jews, Seventh-day Baptists, and others articulated a different vision of democracy requiring the protection of minority rights. These moral minorities prompted a generation of Americans to reassess whether "majority rule" was truly the essence of democracy, and they ensured that majority tyranny would no longer be just the fear of elites and slaveholders. Beginning in the mid-nineteenth-century, minority rights became the concern of a wide range of Americans attempting to live in an increasingly diverse nation.
Volk reveals that driving this vast ideological reckoning was the emergence of America's tradition of popular minority-rights politics. To challenge hostile laws and policies, moral minorities worked outside of political parties and at the grassroots. They mobilized elite and ordinary people to form networks of dissent and some of America's first associations dedicated to the protection of minority rights. They lobbied officials and used constitutions and the common law to initiate "test cases" before local and appellate courts. Indeed, the moral minorities of the mid-nineteenth century pioneered fundamental methods of political participation and legal advocacy that subsequent generations of civil-rights and civil-liberties activists would adopt and that are widely used today.
Here’s the TOC:
1. Making America's First Moral Majority
2. Sunday Laws and the Problem of the Christian Republic
3. The License Question and the Perils of "Pure Democracy"
4. Mixed Marriages, Motley Schools, and the Struggle for Racial Equality
5. "Jim Crow Conveyances" and the Politics of Integrating the Public
6. America's First Wet Crusade and the Sunday Question Redux
Epilogue: Making Democracy Safe for Minorities

Sunday, July 20, 2014

Sunday Book Roundup

This week over at Balkinization, Mark Graber reviews Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights by Emily Zackin (Princeton University Press). He calls the book "an excellent example of the wonderful scholarship that can be produced when exceptional scholars analyze state constitutions through the prism of state constitutional actors rather than through the prism of Warren Court liberalism."

Law and Politics Book Review has two reviews to note. The first is Jill Norgren’s Rebels at the Bar: The Fascinating, Forgotten Stories of America's First Women Lawyers (NYU Press), which “will be of interest to undergraduate and graduate students of American legal history, labor, and gender. Norgren’s well written and thorough volume illuminates the experiences of these determined women and shows the impact of their struggles on the legal profession and the struggles for women’s civil rights.” 

The second is Statebuilding from the Margins: Between Reconstruction and the New Deal edited by Carol Nackenoff and Julie Novkov (University of Pennsylvania Press).
“In an enjoyable, well-researched, and well-edited compilation of eclectic case studies edited by Carol Nackenoff and Julie Novkov, scholars examine how non-state actors of various civic, social, and ideological groups during the Progressive Era brought the state back in as a means of achieving desired policy ends. The accounts are notable for drawing attention to previously unexamined policy areas that provide leverage for claims that statebuilding is not always rational or linear, the distinction between public and private actors is not so cut-and-dried, and that the agency of actors is bounded by institutions and prevailing ideologies of the public good. Taken together, the chapters of this important contribution to the subfield of American Political Development exemplify the quintessential nature of the fragmented, piecemeal, inconsistent, and often jarring development of the capacity of the American state."
Abigail Perkiss talks with New Books in History about her new book, Making Good Neighbors: Civil Rights, Liberalism and Integration in Postwar Philadelphia (Cornell University Press).

And, Michael Bryant talks with New Books in Law about his new book, Eyewitness to Genocide: The Operation Reinhard Death Camp Trials, 1955-1966 (University of Tennessee Press). 

“A recent trend in Native studies is tribal-level examinations on indigenous nation-building and the expanding definitions of sovereignty, as well as examinations regarding citizenship that are inevitably generated from such endeavors. Brian Klopotek, in Recognition Odyssey: Indigeneity, Race, and Federal Tribal Recognition Policy in Three Louisiana Indian Communities, brings a much-needed perspective to these conversations through his detailed analysis of the variability in the recognition process and how success or failure is predicated more on the intersections of larger historical social structures with specific circumstances than on objective qualifications. Using a multidisciplinary approach combining history, anthropology, and sociology, Klopotek has written an immensely impressive and supremely complex history of three distinct Indian communities in late twentieth-century Louisiana seeking state and federal recognition: the Tunica-Biloxi, the Jena Choctaws, and the Clifton-Choctaws.”

Friday, May 2, 2014

New Release: Gold, "When Tenants Claimed the City"

New from the University of Illinois Press: When Tenants Claimed the City: The Struggle for Citizenship in New York City Housing (April 2014) by Roberta Gold (Fordham University). A description from the Press:
In postwar America, not everyone wanted to move out of the city and into the suburbs. For decades before World War II, New York's tenants had organized to secure renters' rights. After the war, tenant activists raised the stakes by challenging the newly-dominant ideal of homeownership in racially segregated suburbs. They insisted that renters as well as owners had rights to stable, well-maintained homes, and they proposed that racially diverse urban communities held a right to remain in place--a right that outweighed owners' rights to raise rents, redevelop properties, or exclude tenants of color. Further, the activists asserted that women could participate fully in the political arenas where these matters were decided.
Grounded in archival research and oral history, When Tenants Claimed the City: The Struggle for Citizenship in New York City Housing shows that New York City's tenant movement made a significant claim to citizenship rights that came to accrue, both ideologically and legally, to homeownership in postwar America. Roberta Gold emphasizes the centrality of housing to the racial and class reorganization of the city after the war, the prominent role of women within the tenant movement, and their fostering of a concept of "community rights" grounded in their experience of living together in heterogeneous urban neighborhoods.
A blurb:
"Is the purchase of a single-family house in the suburbs really the only route to housing happiness? With vigorous, readable prose Roberta Gold uncovers the history of an alternative vision. In New York City, leftist men and women agitated for the rights of renters to build interracial, affordable, locally-controlled communities of apartment dwellers. As Americans contemplate the lessons of the last decade's foreclosure crisis, they would do well to consider the possibilities illuminated in When Tenants Claimed the City." --Amanda Seligman
More information is available here.

Tuesday, March 18, 2014

Palmer on the NZ Bill of Rights at 21

Geoffrey Winston Russell Palmer, Victoria University of Wellington, has posted The Bill of Rights after Twenty-One Years: The New Zealand Constitutional Caravan Moves On? Which appeared in the New Zealand Journal of Public and International Law 11 (2013): 257-88.  Here is the abstract:    
The New Zealand Bill of Rights Act 1990 was an important constitutional development in New Zealand. Twenty-one years after its enactment it appears to have made a positive contribution to the protection of human rights in New Zealand. It is a significant check on executive power. Perhaps the time has come to entrench the Bill of Rights Act and make it superior law. In this article the author, who was then the minister in charge of its production and parliamentary passage, looks at how the Bill of Rights Act has fared and considers its future. With a constitutional consideration now drawing to a close in New Zealand, the future of the Bill of Rights Act is being reviewed. The author considers that the Bill of Rights Act needs to be measured along with other constitutional changes. Thus, the wider context and the overall constitutional balance must be assessed before deciding where next the New Zealand constitutional caravan should travel. The author examines the nature of the constitutional consideration currently underway. He concludes there is a strong case for making the Bill of Rights Act superior law.

Friday, March 14, 2014

New Release: de Bolla on the Historical Formation of Human Rights

New from Fordham University Press: Peter de Bolla, The Architecture of Concepts: The Historical Formation of Human Rights (Dec. 2013). The Press explains:
The Architecture of Concepts proposes a radically new way of understanding the history of ideas. Taking as its example human rights, it develops a distinctive kind of conceptual analysis that enables us to see with precision how the concept of human rights was formed in the eighteenth century.

The first chapter outlines an innovative account of concepts as cultural entities. The second develops an original methodology for recovering the historical formation of the concept of human rights based on data extracted from digital archives. This enables us to track the construction of conceptual architectures over time.

Having established the architecture of the concept of human rights, the book then examines two key moments in its historical formation: the First Continental Congress in 1775 and the publication of Tom Paine's Rights of Man in 1792. Arguing that we have yet to fully understand or appreciate the consequences of the eighteenth-century invention of the concept "rights of man," the final chapter addresses our problematic contemporary attempts to leverage human rights as the most efficacious way of achieving universal equality.
Project Muse subscribers may access the full text here.

Monday, February 17, 2014

CFP: “'Rights' in World History"

Via H-Law, we have the following announcement:
The Midwest World History Association is happy to announce a call for paper, poster, panel, roundtable, and workshop proposals for its annual conference to be held at Governors State University in University Park, Illinois, on September 26th and 27th 2014. The conference theme of “Rights” in World History is intended to connect the 50th anniversary of the 1964 Civil Rights Act with other struggles to conceptualize, claim, and defend the “rights” of individuals and groups in different societies and at different times.
The keynote will be given by award-winning journalist, activist, and historian Juan Gonzales. Robert Smith of UW-Milwaukee will offer a half-day workshop for teachers on The Civil Rights Movement in Transnational Context.

Please email a 250-word abstract and a short curriculum vitae via to no later than APRIL 30th, 2014. Where a complete panel is proposed, the convener should also include a 250 word abstract of the panel theme.

Tuesday, December 17, 2013

Cheer Up, Mr. Rothstein!

Edward Rothstein’s review, in today’s New York Times, of Records of Rights, the new exhibition at the National Archives, reveals yet again how central law is to Americans’ national identity.  Anchoring the exhibition, on permanent loan from the philanthropist David M. Rubenstein, is one of four surviving copies of Magna Carta.  From that medieval artifact, visitors turn to a history of rights in the United States.  They can then pass into our great national reliquary, the Rotunda of the National Archives, with its copies of the Declaration of Independence, Constitution and Bill of Rights. 

Credit: National Archives
Mr. Rothstein expected that the exhibit would show that the United States was “one of the few nations to evolve out of concepts rather than a people or place.”  He hoped that it would show “how ideas of due process grew into ideas of rights and liberty, which, however haltingly or falteringly, made their way into the present.”  Instead, it shows “not how these ideas succeeded despite flaws, but how deeply throughout our history they have failed.”  Mr. Rothstein faults the exhibition for presenting “no context or perspective; only grim struggles and partially won liberties.”  He asks, “What are we left with, as we head up to the Rotunda to see the founding documents?”  The answer, he fears, is that “the United States has been uniquely hypocritical and surpassingly unjust.”

I’ll give myself the treat of viewing the exhibition once I finish grading my exams.  My impression from viewing the on-line version is that the creators of “Records of Rights” got it just about right.  If the exhibition never acknowledged Americans’ recognition of rights, I’d be just as critical as Mr. Rothstein is.  But the on-line version, at least, includes many examples of the constitutional, judicial, legislative and popular recognition of quite fundamental rights. I could detect nothing grudging about the curators’ decision to include, for example, the Fourteenth Amendment, the Civil Rights Act of 1964, Tinker v. Des Moines Independent Community School District, Lawrence v. Texas, or the Americans with Disabilities Act.

Visitors might well enter the Rotunda with a sense that the recognition of rights in America has been imperfect and incomplete.  Can one really argue they shouldn't, especially when the lead story of the same issue of the Times reports on Judge Richard Leon’s ruling that the NSA’s collection of Americans’ phone records “infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment”?

Cheer up, Mr. Rothstein!  As they enter the Rotunda, visitors probably won't be ruminating on the "uniquely hypocritical” history of rights in the United States.  More likely, they'll be thinking that that history is not yet concluded and that they can still have a part in making it.

Tuesday, December 10, 2013

West, "Toward a Jurisprudence of the Civil Rights Acts"

Robin L. West (Georgetown University Law Center ) has posted "Toward a Jurisprudence of the Civil Rights Acts." Here's the abstract:
What is the nature of the “rights,” jurisprudentially, that the 1964 Civil Rights Act legally prescribed? And, more generally, what is a “civil right”? Today, lawyers tend to think of civil rights and particularly those that originated in the 1964 Act, as antidiscrimination rights: our “civil rights,” on this understanding, are our rights not to be discriminated against, by employers, schools, landlords, property vendors, hoteliers, restaurant owners, and providers of public transportation, no less than by states and state actors, on the basis of race, gender, ethnicity, age, sexuality or disability. Contemporary civil rights scholarship overwhelmingly reflects the same conception: our civil rights are quasi-constitutional rights to be free of discrimination in the private as well as public world. But this conventional lawyerly understanding -– basically, that “civil rights” are “antidiscrimination rights” -– is clearly inadequate, certainly with respect to civil rights generally but also, and more tellingly, even with respect to the rights created and then protected by the ‘64 Act itself.

Tuesday, October 1, 2013

Edwards to Lecture on “Women, Law, and Culture: Rethinking Legal Change in the Civil War Era"

[Our friends at Oregon Law send us the following announcement.]

The Law, Culture, and Humanities Initiative presents “Women, Law, and Culture: Rethinking Legal Change in the Civil War Era,” with Laura Edwards, Thursday, October 3, 2013, 12:30 – 2:00 p.m., Lewis Lounge, Knight Law Center, University of Oregon.

Laura F. Edwards received her Ph.D. from the University of North Carolina, Chapel Hill and is now Professor of History at Duke University. Her interests focus on race, gender, labor, and law, especially in the nineteenth-century U.S. South. She just completed a legal history of the Civil War and Reconstruction titled A Nation of Rights. Most recently, she is the author of The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (University of North Carolina Press, 2009), which was awarded the American Historical Association’s 2009 Littleton-Griswold prize for the best book in law and society and the Southern Historical Association’s Charles Sydnor prize for the best book in southern history. In addition, she is author of Scarlett Doesn’t Live Here Anymore: Southern Women in the Civil War Era (University of Illinois Press, 2000); and Gendered Strife and Confusion: The Political Culture of Reconstruction (University of Illinois Press, 1997). She has received fellowships from the Newberry Library, the National Humanities Center, the NEH, and the Guggenheim Foundation. She also has been honored with the Howard D. Johnson award for distinguished undergraduate teaching, given by the College Arts and Sciences at Duke University and the Dean’s Award for Excellent Mentoring, given by the Graduate School at Duke University.

RSVP to Sabrina Leathers: [ASAP].

Cosponsored by Oregon Humanities Center, Center for the Study of Women in Society, Office of the Vice Provost for Equity and Inclusion, Department of Political Science, School of Law Lectures and Awards, Department of History, and Office of Academic Affairs.

The Law, Culture, and Humanities Initiative was created to facilitate, support, and encourage symposia, lectures, scholarship, and faculty discussion on the relationship between law and other humanistic disciplines. It provides opportunities for faculty to integrate humanistic-based studies with the study of law, and to explore the increasingly diverse and rich scholarships in areas that include (but are not limited to) legal history, law and literature, law and anthropology, and law and philosophy.

Wednesday, June 12, 2013

June 2013 Issue of Reviews in American History

The June 2013 issue of Reviews in American History is out. Although full text is limited to subscribers, we'll spotlight some items of interest:
The Constitution Goes Public: Politics and the Ratification Debate -- Todd Estes (Oakland University) reviews Jürgen Heideking, The Constitution before the Judgment Seat: The Prehistory and Ratification of the American Constitution, 1787–1791 (John P. Kaminski and Richard Leffler, eds.) (University of Virginia Press, 2012).

The Inventor’s Dilemma—The Confederate Version -- William G. Thomas (University of Nebraska, Lincoln) reviews H. Jackson Knight, Confederate Invention: The Story of the Confederate States Patent Office and Its Inventors (Louisiana State University Press).

Social Reform through Social Exclusion --Thomas J. Humphrey (Cleveland State University) reviews Craig Calhoun, The Roots of Radicalism: Tradition, The Public Sphere, and Early Nineteenth-Century Social Movements (University of Chicago Press, 2012) and Michele Lise Tarter and Richard Bell, eds., Buried Lives: Incarcerated in Early America (University of Georgia Press, 2012).
Officers sans Army -- Erik S. Gellman (Roosevelt University) reviews Shawn Leigh Alexander, An Army of Lions: The Civil Rights Struggle Before the NAACP (Pennsylvania University Press, 2012).
The Many Faces of Judicial Independence -- Charles Zelden (Nova Southeastern University) reviews Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America (Harvard University Press, 2012).

Friday, May 17, 2013

New Release: Zackin, "Looking for Rights in All the Wrong Places"

New from Princeton University Press: Looking for Rights in All the Wrong Places: Why State Constitutions Contain America's Positive Rights (2013), by Emily Zackin (Department of Political Science, Hunter College, City University of New York). Here's a description from the Press:
Unlike many national constitutions, which contain explicit positive rights to such things as education, a living wage, and a healthful environment, the U.S. Bill of Rights appears to contain only a long list of prohibitions on government. American constitutional rights, we are often told, protect people only from an overbearing government, but give no explicit guarantees of governmental help. Looking for Rights in All the Wrong Places argues that we have fundamentally misunderstood the American rights tradition. The United States actually has a long history of enshrining positive rights in its constitutional law, but these rights have been overlooked simply because they are not in the federal Constitution.
Emily Zackin shows how they instead have been included in America's state constitutions, in large part because state governments, not the federal government, have long been primarily responsible for crafting American social policy. Although state constitutions, seemingly mired in trivial detail, can look like pale imitations of their federal counterpart, they have been sites of serious debate, reflect national concerns, and enshrine choices about fundamental values. Zackin looks in depth at the history of education, labor, and environmental reform, explaining why America's activists targeted state constitutions in their struggles for government protection from the hazards of life under capitalism.
Shedding much-needed light on the variety of reasons that activists pursued the creation of new state-level rights, Looking for Rights in All the Wrong Places challenges us to rethink our most basic assumptions about the American constitutional tradition.
Emily Zackin (credit)
The blurbs are impressive. Here are a few:
"Emily Zackin argues that the United States has a long history of positive rights protection, created and fostered by political outsiders who wanted to change society and disrupt the status quo. We will find this tradition not in the federal constitution, but in our country's many state constitutions. This is a crucially important book revealing an unjustly neglected feature of America's constitutional traditions."--Jack M. Balkin, Yale Law School

"This is an extremely important book that will be widely discussed. One of the pathologies of the standard approach to American constitutionalism is its exclusive focus on the U.S. Constitution and the concomitant ignorance of the rich materials to be found in the literally dozens of American state constitutions. This book will be an extremely important wake-up call for most readers."--Sanford Levinson, author of Constitutional Faith
The TOC:
Chapter 1: Looking for Rights in All the Wrong Places 1
Chapter 2: Of Ski Trails and State Constitutions: Silly Details or Serious Principles? 18
Chapter 3: Defining Positive Rights 36
Chapter 4: Why Write New Rights?: Understanding Constitutional Development Apart From Entrenchment 48
Chapter 5: Education: A Long Tradition of Positive Rights in America 67
Chapter 6: Workers' Rights: Constitutional Protections Where (and When) We Would Least Expect Them 106
Chapter 7: Environmental Protection: Positive Constitutional Rights in the Late Twentieth Century 146
Chapter 8: Conclusion 197
The first chapter is available here.

Monday, February 4, 2013

Davis reviews Pearson, "The Rights of the Defenseless"

H-SHGAPE has published a review of Susan J. Pearson, The Rights of the Defenseless: Protecting Animals and Children in Gilded Age America (University of Chicago Press, 2011). We mentioned the book not too long ago because it won the  2012 Merle Curti Award from the Organization of American Historians.

Reviewer Janet M. Davis describes the book as a "superb work of intellectual history," which "charts a clear genealogy for generations of social thought regarding children, animals, property, the family, and state formation." Here's a paragraph of the review that I found fascinating, dealing with Pearson's contribution to our understanding of the modern American state:
Pearson contends that nineteenth-century Americans may have clung to exceptionalist ideals of weak, limited government, but in practice, the Civil War marked a consolidation of federal authority that intensified during the Gilded Age. The activities of state and local governments reveal an even more dynamic landscape of "state interference" during this era, especially with respect to the shared movement to prevent cruelty to animals and children. Although animal and child protection organizations were private institutions, they helped transform the reach of the state through an ideological project that Pearson calls "sentimental liberalism." Vested with the powers of arrest in their state charters of incorporation, private SPCAs, SPCCs, and humane societies (which performed plural child and animal protection activities) fused the classical liberal language of rights with a sentimental conviction that "beasts and babes" had a right to protection because they could feel and suffer. According to Pearson, "Speaking the language of rights while amplifying the powers of the state, humane societies stood at the crossroads of what historians typically think of as two versions of liberalism--the one classical and minimalist, the other modern and interventionist" (p.16).
Read on here. (Hat tip: H-Law)

Friday, December 28, 2012

Abortion, Legal History, and Common Ground

This post ends my time on Legal History Blog. It’s been a pleasure. I wanted to end my posts by considering what might be the central historical question surrounding Roe—whether the opinion made it impossible for opposing activists to identify common ground on abortion or on any other issue involving sex equality or reproductive health. Recently, Gene Burns, Linda Greenhouse, and Reva Siegel have shown that polarization often attributed to Roe began before the decision.

My current project shows that opportunities to find common ground remained available in the decade after Roe. In the 1970s, those on opposing sides worked together on legislation involving pregnancy discrimination, publicly funded childcare, and contraceptive access for adolescents. When collaboration of this kind became politically difficult, Roe alone was not to blame. Political party realignment, the mobilization of the New Right and the Religious Right, and the strengthening of feminist consensus on abortion rights led to an alliance between the antiabortion movement and social conservatism. Those who had fought for common ground found themselves marginalized or forced to set aside other political commitments to advance antiabortion goals. One member of Feminists for Life put it particularly poignantly in 1979:

The best description of what it’s like to be a feminist for life is something like this: You walk into a lovely walled garden . . ., and you take a deep breath and go at the wall full gallop! And you do the same thing tomorrow, bashing your head against anything available that isn’t soft, in your determination to continue to walk that painful, frustrating road that bridges the right to life movement and the left.

In the research for my project, I came upon a common ground meeting held in 1979. Perhaps unsurprisingly, the meeting ended in failure, as antiabortion activists interrupted a press conference to display two dead fetuses. Many of those with whom I conducted oral history interviews remembered the meeting, but as they so often reminded me, these activists were not getting any younger. One went so far as to ask me for a copy of a newspaper article about the meeting. Younger activists, she said, could no longer believe that such a meeting had taken place.

As this story reminded me, the lost world of abortion politics in the 1970s looks very different from the clash of absolutes that is now so familiar to us. Studying this history makes clear that there was nothing inevitable about the way in which abortion law and politics evolved. This messiness, this fluidity and unpredictability—as one activist put it—are part of what makes these stories so deserving of study.

Wednesday, December 26, 2012

Interpreting Roe in the Abortion Clinic

Just as opposing activists reinterpreted Roe’s holding, abortion providers in the 1970s had to interpret an increasingly complex body of law. At clinics like Reproductive Health Services in St. Louis, a number of different stakeholders had to interpret both constitutional and statutory rules governing abortion. Attorneys representing the clinic worked primarily to guarantee that the clinic did not obviously run afoul of any valid law and to challenge any questionable law in court. Providers themselves had different goals in interpreting these laws. Those like Judith Widdicombe, the founder of Reproductive Health Services and a NARAL leader, wanted to convey to women what they could demand of the medical and legal establishment. Providers at Reproductive Health Services also interpreted abortion law with the intention of building political support for their practice. Patients received an explanation of what abortion rights ought to be, suggesting that the Constitution did not impose any meaningful limits on reproductive autonomy. The clinic also provided information about how to become involved in the movement to defend those rights. Finally, patients often had to make their own decisions about the legality and morality of their own decisions. The archived papers from Reproductive Health Services make clear that women often asked about the laws governing their decisions, folding questions of legality into an already complex moral decision.

As the experience of Reproductive Health Services in the 1970s suggests, lay people as well as lawyers forged the meaning of abortion laws outside the courtroom. Often, in the clinic, different stakeholders interpreted abortion laws in varying ways for different purposes. Attorneys representing the clinic exhibited consistent cautiousness, hewing closely to the courts’ articulations of abortion law. Providers, by contrast, were deeply skeptical about the courts and the rights they protected. For Widdicombe, Roe and its progeny served as symbols available to patients seeking reassurance, empowerment, or a reason to become politically active. For this reason, providers tended to stray quite far from what the Court had said, reinterpreting Roe and subsequent decisions to reflect rights that providers believed the Constitution ought to protect irrespective of what the Court said. In practice, providers often served as the primary interpreters of constitutional law in the clinic, informing staff, trainees, and patients about what the Constitution means. Something similar appears to have been true of the Birthright Clinic in St. Louis, founded in 1971.

Abortion providers, crisis-pregnancy counselors, attorneys, and patients helped to determine the  abortion law outside the courts. Certainly, formal law shaped these exchanges, as some form of judicial intervention always remained a possibility. Just the same,  in the 1970s, the clinics themselves created a substantial and largely understudied body of abortion law. 

Friday, December 7, 2012

Robinson reviews Verkemaa, "Conrad Summenhart's Theory of Individual Rights"

New from the Medieval Review: Jonathan Robinson (Catholic University of America) reviews Jussi Varkemaa, Conrad Summenhart's Theory of Individual Rights (BRILL, 2011). Here's a description of the book, from the publisher's website:
In recent decades scholars have shown considerable and steadily increasing interest in medieval discussions of rights. This book aims to make a significant contribution to scholarship by providing a detailed and systematic account of Conrad Summenhart’s (c.1458-1502) language of individual rights. Starting from the view that Summenhart’s Opus septipartitum contains a carefully constructed and comprehensive theory of individual rights, this study analyses Summenhart’s theory in its historical context, treating it as a culmination of late medieval discourse on individual rights. This study is particularly useful to scholars interested in the origin of human rights language and modern political individualism, as well as to all those who work in the field of late medieval and early modern political and moral philosophy.
And here's a snippet of the review:
This book helps fill a large gap in our knowledge about the history of theories and theorizing about rights. Interest in "human" rights has grown steadily over the last sixty years or so, and it has been matched by a corresponding interest in the pre-modern (early-modern) history of 'natural' rights. Jussi Varkemaa's book on Conrad Summenhart (ca. 1458-1502) can be seen as another example of this trend. Its main value lies in the close reading of the first part of Summenhart's massive Septipertitum opus de contractibus pro foro conscientie atque theologico, which opens with a detailed analysis of ius and dominium. Varkemaa's bibliography is proof that not many scholars have tried to work their way through the Septipertitum opus, and the rest of his book is proof that Summenhart's views are well worth studying, both on his own terms and because of his influence on the School of Salamanca. We should hope for more books like this if we hope to press the case that medieval intellectuals played an important role in later thinking about rights. [footnotes omitted]
Read on here.

The Medieval Review also recently covered Fiona Edmonds, and Paul Russell, eds., Tome: Studies in Medieval Celtic History and Law, in Honour of Thomas Charles-Edwards (Woodbridge: The Boydell Press, 2011). Check it out here.

Monday, December 3, 2012

Revisiting Reactions to Roe

It’s a pleasure to be blogging on Legal History Blog-- thanks to Dan and Karen for the invitation. With the fortieth anniversary of Roe coming up, my current book project has got me thinking about the stories we often tell about the historical impact of Roe. As part of the project, I have done over a hundred oral history interviews with activists who participated in the struggle in the 1970s. If there is a recurring theme, it is that Roe was not as important as we law professors like to think. In upcoming posts, I hope to take these activists’ concerns seriously. How might the history of abortion law and politics look different if Roe were no longer the sole or primary focal point of our analysis?

One particular activist, Warren Schaller, got me thinking about the Court’s current approach to informed consent restrictions. As Reva Siegel, Ronald Turner and other have shown, the Court increasingly resolves abortion cases by making assertions of scientific fact or deferring to similar pronouncements by Congress. The Court’s analysis of informed consent, in Planned Parenthood v. Casey quite literally asks judges to decide whether normatively charged statements about abortion are true.

Right after Roe, Schaller also advised the antiabortion movement to make scientific arguments. The Executive Director of the National Right to Life Committee in the period, Schaller was a minister, a supporter of the Equal Rights Amendment, and a self-described progressive--by any measure, a strange choice for the architect of antiabortion strategy. His strategy was to fight fire with fire. If the Roe Court had relied on the views of physicians and on medical evidence, so too could abortion opponents. Medical claims, as Schaller had suggested, were designed to make the movement look more secular, legitimate, and respectable. Relying on the “facts of life” would further allow policymakers to chip away at abortion rights without admitting they were doing so.

It seems now that, given the Court’s current approach, Warren Schaller was a smart man. In the 1970s, though, the strategy made little headway. In the Supreme Court and in Congress, commentators insisted that medical decisions about abortion properly belonged to physicians—a view echoed by some in the antiabortion movement. Since Schaller’s time, of course, this kind of strategy may work better partly because the status of physicians has changed dramatically in the abortion debate, both inside and outside the movement community. After all, we do not talk any longer about a physician’s right to choose abortion. How we got from Roe to a woman’s right to choose is itself an important question that I hope to address in a future post.

Tuesday, November 6, 2012

Liebesman on Married Women's Property in the American Colonies

My former student Yvette Joy Liebesman, Saint Louis University School of Law, has posted No Guarantees: Lessons from the Property Rights Gained and Lost by Married Women in Two American Colonies, which originally appeared in the Women's Rights Law Reporter 27 (2006): 181-202.  Here is the abstract:    
While our own history demonstrates long-term forward progress and expansion of women’s rights, it is also marked with periods of back-treading, and there is no absolute assurance that the rights women in the United States enjoy today will be present in the future. Rights of property, suffrage, and liberty are not guaranteed to last forever, and not just in places such as Iran and Afghanistan. Indeed, we are only a few generations removed from circumstances in which our own freedom was sharply curtailed, and they are under a continuing threat.

Wednesday, October 10, 2012

Tani on Welfare Rights as a Language of the State

I’m very pleased to note that my fellow Legal History Blogger Karen M. Tani, University of California-Berkeley Law, has posted Welfare and Rights Before the Movement: Rights as a Language of the State, which is forthcoming later this year in volume 122 of the Yale Law Journal.  Here is the abstract:
Jane Hoey (credit)
In conversations about government assistance, rights language often emerges as a danger: when benefits become “rights,” policymakers lose flexibility, taxpayers suffer, and the poor lose incentive to work. Absent from the discussion is an understanding of how, when, and why Americans began to talk about public benefits in rights terms. This Article addresses that lacuna by examining the rise of a vibrant language of rights within the federal social welfare bureaucracy during the 1930s and 1940s. This language is barely visible in judicial and legislative records, the traditional source base for legal-historical inquiry, but amply evidenced by previously un-mined administrative records. Using these documents, this Article shows how concepts of “welfare rights” filtered through federal, state, and local administrative channels and into communities around the nation.

This finding contradicts conventional wisdom, which dates the birth of “welfare rights” language to the 1960s. This Article reveals that as early as 1935, some Americans—government officials, no less—deliberately and persistently employed rights language in communications about welfare benefits. In addition to challenging dominant interpretations, this Article identifies an under-studied aspect of rights language. An abundant “rights talk” literature chronicles and critiques claimants’ use of rights language. This Article, by contrast, identifies rights language emanating from government and being used for government purposes. Specifically, this Article argues that federal administrators used rights language as an administrative tool, a way to solve tricky problems of federalism and administrative capacity at a time in which poor relief was shifting from a local to a state and federal responsibility. Thus this Article not only enriches debates about the role of rights in contemporary social welfare reforms, but it also brings fresh insights to scholarship on the techniques of administrators and the limits of federal power.

Monday, September 24, 2012

Zietlow on Ashley's Thirteenth Amendment

Rebecca E. Zietlow, University of Toledo College of Law, has posted James Ashley's Thirteenth Amendment which is forthcoming in Columbia Law Review 112 (2012). Here is the abstract:
James Ashley (Library of Congress)
On January 31, 1865, the United States House of Representatives voted to approve the Thirteenth Amendment. Chairing the final debate over the Amendment was Representative James Ashley, a lifelong opponent of slavery from Northwest Ohio who led the fight for the Amendment’s approval in the House. Ashley and his antislavery colleagues believed that the Thirteenth Amendment not only ended slavery, but also established fundamental human rights for freed slaves and other people in the United States. This Essay describes Ashley’s theory of the Thirteenth Amendment, a theory that addressed the intersectionality of racial and class-based oppression. Ashley viewed slavery as an institution that relied on both racial and class subordination. Remedying the harms of slavery would require the restoration of a wide range of fundamental human rights that had been violated by that institution, to remedy both the class and race-based subordination that had made slavery possible and improve the status of all workers. As scholars engage in that dialogue over the meaning of rights in the twenty-first century, the Thirteenth Amendment will play an important role. James Ashley’s vision of the Thirteenth Amendment is helpful not only for understanding its history, but also because it resonates in the twenty-first century and provides a useful model for rethinking equality rights.
Hat tip: Legal Theory Blog