Special issue: The Meaning and Legacy of the Magna Carta

The current issue of PS: Political Science & Politics carries a Symposium: The Meaning and Legacy of the Magna Carta. From the Editor's Introduction by Kent Worcester, Marymount Manhattan College:

The six essays of this symposium address different aspects of the meaning and legacy of the Magna Carta-"the Great Charter" in Latin. Although social scientists and legal scholars routinely describe the Magna Carta as foundational for concepts of justice and liberty, the charter itself is rarely assigned in political science classes or scrutinized by political theorists. The aim of the symposium is twofold: first, to affirm the document's historical rootedness and intellectual richness, and, second, to explore the ways in which the Magna Carta's text and reputation have informed the development of common law and modern politics. The Magna Carta was the product of times very different from our own, yet it continues to be cited by jurists and human rights activists around the globe. This symposium makes the case for why political scientists should take an interest in the Magna Carta, not just as a cultural icon, but as a durable political text.

Table of contents:

The Meaning and Legacy of the Magna Carta
Kent Worcester

The Liberty of the Church and the Road to Runnymede: John of Salisbury and the Intellectual Foundations of the Magna Carta
Cary J. Nederman

Jus Tempus in the Magna Carta: The Sovereignty of Time in Modern Politics and Citizenship
Elizabeth F. Cohen

Forgers of Law and Their Readers: The Crafting of English Political Identities between the Norman Conquest and the Magna Carta
Bruce R. O'Brien

With a Little Help from a Friend: Habeas Corpus and the Magna Carta after Runnymede
Justin J. Wert

Slavery and the Magna Carta in the Development of Anglo-American Constitutionalism
Justin Buckley Dyer

Photo: Magna Carta.

A Question of Rights: CFP deadline on Monday

The deadline is Monday, March 15, for submissions for the annual conference on rights in history, politics, and society, at San Francisco State University, noted here. This is an especially good opportunity for graduate students. And September is such a great time to be in San Francisco! (...actually, any time is a great time to be in San Francisco.) Hat tip: H-Law.

Tushnet on the Rights Revolution

We've previously noted the publication of two pamphlets in the series New Essays on American Constitutional History, published by the American Historical Association and the Institute for Constitutional History: Louis Fisher's The War Powers: Original and Contemporary, and Jean Baker's Women and the Constitution, 1776-1920. Now comes Mark V. Tushnet's The Rights Revolution in the Twentieth Century, an expansion of his chapter on the same topic in the Cambridge History of Law in America (2008). Says the AHA:

Tushnet traces the concept of legal "rights" through the 20th century--from their origins in classical liberalism, fashioned in legislatures and emphasizing choice and contract, to notions of personal autonomy and equality protected by the judicial system.

I read a draft and can recommend the work highly.

Dripps on the 14th Amendment, the Bill of Rights, and the (First) Criminal Procedure Revolution

The Fourteenth Amendment, the Bill of Rights, and the (First) Criminal Procedure Revolution is a new article by Donald A. Dripps, University of San Diego School of Law. It is forthcoming in the Journal of Contemporary Legal Issues (2009). Here's the abstract:

The theory that the Fourteenth Amendment incorporates the Bill of Rights established the foundation for the Warren Court's "criminal procedure revolution." Long before the Warren Court, however, there had been another criminal procedure revolution. This first revolution worked slowly and incrementally, led throughout the nineteenth century by legislatures rather than by courts. It included an institutional, an intellectual, and a doctrinal component. When it was over - roughly speaking, around the turn of the nineteenth into the twentieth century - the founders' criminal justice system had been altered beyond recognition.

This essay argues that our understanding of the incorporation question can be strengthened by appreciating the first criminal procedure revolution. The ratification of the Fourteenth Amendment took place just as the doctrinal part of the revolution - the authorization of felony prosecutions by information and of testimony by the defendant - was becoming part of the positive law. These doctrinal changes were incompatible with the Fifth Amendment's indictment and self-incrimination clauses, and this incompatibility was recognized by both their proponents and their opponents. Many of the best jurists in the North and West did not understand the Fourteenth Amendment as imposing these clauses on the states.

To say the history of criminal justice in the nineteenth century provides powerful evidence against the incorporation theory is not to say that this evidence is dispositive. There is evidence on all sides of the incorporation controversy, and how to weigh it is something reasonable people continue to contest. All I claim here is that, however we understand the appeal to the original understanding, the first revolution presents powerful evidence against incorporation of the grand jury and self-incrimination clauses of the Fifth Amendment, and by implication against any theory of total incorporation.

Hilbink on Conservatism and the Making of Rights in Modern America

The Right’s Revolution?: Conservatism and the Making of Rights in Modern America, is a new article by Thomas Hilbink, Open Society Institute. It appears in Studies in Law, Politics, and Society (2009). Here's the abstract:

While many see the 1960s as the era of a ‘‘rights revolution’’ in American law, this article looks back from the present moment of conservative legal dominance to better understand the ways in which conservative ideas began to grow during the heyday of legal liberalism. Using recent histories of post-1945 grassroots conservatism, the author argues that conservative rights claims – while often legally questionable – constituted for many a powerful and persuasive understanding of the Constitution. Due to this popular conservative jurisprudence’s endurance and influence, its existence in the 1960s forces reconsideration of understandings of the 1960s as the era of the ‘‘rights revolution.’’

McAffee on Treanor on Amar on the 9th Amendment

Taking History Seriously: Reflections on a Critique of Amar's Treatment of the Ninth Amendment in His Work on the Bill of Rights is a new paper by Thomas McAffee, William S. Boyd School of Law, UNLV. Here's the abstract:

Dean William Treanor critiques constitutional textualism, contending that it pays too much attention to the words, grammar, and placement of clauses in the Constitution, and too little to the history leading to the adoption of the interpreted language. An important illustration is Professor Amar's treatment of the Ninth Amendment in his well-known book on the Bill of Rights. This treatment shares the perspective that history frequently sheds light on the meaning of constitutional text, but contends that the history yielding the Ninth Amendment demonstrates that it was drafted to secure the rights retained by the granting of limited federal powers -- and hence the collective right of the people of the states to make decisions about government, including the extent to which rights were to be protected. The modern debate over the original meaning of the Ninth Amendment, moreover, reflects and embodies that the debate concerns the appropriate reading of a positivist Constitution.

On Ninth Amendment history, check out the new book by Kurt Lash, The Lost History of the Ninth Amendment. More on that to come later.

Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South

Laura F. Edwards, Duke University, has published a beautiful new book, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (University of North Carolina Press, 2009). In this excerpt, Edwards describes her subject as "the societal equivalent of a silent summer rain shower: changes that eased themselves into the nation's history with so little notification that, once they had been established, it appeared as if things had always been that way." Just published in cloth this spring, the paperback will be out by September 2009 -- in time for course adoptions.

Here's the book description:

In the half-century following the Revolutionary War, the logic of inequality underwent a profound transformation within the southern legal system. Drawing on extensive archival research in North and South Carolina, Laura F. Edwards illuminates those changes by revealing the importance of localized legal practice.

Edwards shows that following the Revolution, the intensely local legal system favored maintaining the "peace," a concept intended to protect the social order and its patriarchal hierarchies. Ordinary people, rather than legal professionals and political leaders, were central to its workings. Those without rights--even slaves--had influence within the system because of their positions of subordination, not in spite of them. By the 1830s, however, state leaders had secured support for a more centralized system that excluded people who were not specifically granted individual rights, including women, African Americans, and the poor. Edwards concludes that the emphasis on rights affirmed and restructured existing patriarchal inequalities, giving them new life within state law with implications that affected all Americans.

Placing slaves, free blacks, and white women at the center of the story, The People and Their Peace recasts traditional narratives of legal and political change and sheds light on key issues in U.S. history, including the persistence of inequality--particularly slavery--in the face of expanding democracy.

And the blurbs:

"This extraordinary book, powerfully conceived and beautifully written, casts a brilliant light on the mysterious processes by which local discretionary justice in the early American republic was gradually overlaid--though never entirely supplanted--by a central, formal state law of rules and rights. From research in thousands of archives, Laura Edwards has brought to life the hierarchical yet communal world of local law in the Carolinas, where rich and poor, husbands and wives, masters and even some slaves brought their claims before courts committed to repair breaches of public order. This book is a pioneering contribution to legal history. It is also a deep and subtle commentary on the rule of law. Subordinate peoples may sometimes fare better in informal regimes that allow their participation than in formal legal systems of individual rights, from which, if they have no rights, they may be shut out entirely."--Robert W. Gordon, Chancellor Kent Professor of Law
and Legal History, Yale Law School

"The People and Their Peace is a landmark book. Edwards recovers a whole world of ground-level activity, thinking, and assumptions about law, and then uses that yet unmapped legal world to rethink the legal history we do know--the world of 'the law' controlled by legislatures, jurists, and high courts. This profoundly significant analysis is grounded in a wealth of evidence and argued persuasively, often elegantly."--Dylan Penningroth, author of The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South

Jilting the President for Congress

An intriguing aspect of West Virginia State Board of Education v. Barnette involves the Justices' choice of partners in making the sale to the American public that the Constitution embodies a more robust right of individual conscience than what they believed a few years earlier. The background assumption many scholars work with today is that, all things being equal, the Supreme Court prefers not to go it alone, particularly when the institution anticipates controversy ahead. Robert Jackson's early drafts of the opinion suggest that his preferred partner originally was the presidency. This makes sense on a number of levels, given that executive branch officials had flooded the zone on the matter, Jackson and others may have honestly been swayed by their statements and actions, and independent reasons exist for thinking that the modern presidency enjoys an influential role in framing constitutional questions.

But Jackson at some point appears to have changed his mind during the opinion writing process, and the published opinion not only sought to erase the appearance of presidential cooperation but also gestured toward Congress. Sandwiched between two sentences in Barnette on the risks to the Constitution posed by overzealous local officials is this sentence: "The action of Congress in making flag observance voluntary and respecting the conscience of the objector in a matter so vital as raising the Army contrasts sharply with these local regulations in matters relatively trivial to the welfare of the nation."

Note that the argument is only that the passage of a recent federal law and the existence of a textual commitment to Congress "contrast[] sharply" with a relatively minor claim by local officials to work in the federal interest, not that the federal law or Congress's power to raise an army is actually violated by a mandatory flag salute. In other words, a clash of federal and state interests is a strong suggestion rather than a firm conclusion.

What caused this aspect of the switch and what does it reveal?

The decision to swap partners merits further digging and rumination. For now, let me offer a few additional thoughts beyond my prior writings. First, the development may reflect no more than respect for formalism, since the administration was not a party to the action. On the other hand, DOJ was not present to defend the flag law or Congress's power to raise an army, either, so while formalism may explain in part a decision to jilt the presidency, it doesn't completely explain the Court's decision to take up with Congress. The argument that the federal flag law preempted conflicting state and local laws was made in the DOJ lawyers' article, pressed by the ACLU as amicus curiae below, and rejected by the three-judge panel that first heard the action—which means that the Supreme Court ended up watering down the argument, but found it useful anyway to imply federal-state friction. Still, at least the argument had already been made somewhere during the lawsuit.

Second, formalities aside, Congress is often an attractive partner because many Americans think of the legislative branch as most in tune with popular preferences. As an institution, it also has a hard time talking back in a single voice. Given the collective action problems involved in repudiating the Barnette Court's inconclusive assertion of a federal interest in all matters concerning the flag, the Justices may have felt it reasonably safe to imply that the Court and Congress were in accord on the matter. Since it hadn't issued a strong endorsement of Gobitis already, Congress was unlikely to do anything to shatter the illusion of Judiciary-Congress cooperation (though you can never fully predict a reaction to legal decisions).

Third, seeking cover behind legislative prerogatives may reflect some hangover effect from the New Deal years—including increased suspicion of presidential authority left over from the court-packing crisis. It is possible, of course, to argue that FDR was not nearly as popular in the 1940s as he had been in the 1930s. If this is true, then the contingent, oscillating nature of a particular office-holder's popularity may have affected the ultimate presentation in Barnette.

Photo credit.

Another View

Dear Mr. President

Langston Hughes

President Roosevelt, you
Are our Commander in Chief.
As such, I appeal
To you for relief.

Respectfully, sir,
I await your reply
As I train here to fight,
Perhaps to die.

I am a soldier
Down in Alabam
Wearing the uniform
Of Uncle Sam.

But when I get on the bus
I have to ride in the back.
Rear seats only
For a man who's black.

When I get on the train,
It's the Jim Crow car—
That don't seem to jibe
With what we're fighting for.

Mr. President, sir,
I don't understand
Democracy that
Forgets the black man.

Respectfully, therefore,
I call your attention
To these Jim Crow laws
Your speeches don't mention.

I ask why YOUR soldiers
Must ride in the back,
Segregated—
Because we are black?

I train to fight,
Perhaps to die.
Urgently, sir,
I await your reply.

—People's Voice (July 3, 1943), p. 23

What Caused the Supreme Court to Change its Mind on the Flag Salute?

The question of causation is notoriously difficult to assess, in law as in history. The legal system's goals of fashioning incentives just-so and compensating injured parties demand that participants assign responsibility. Judges and juries identify the "proximate cause" or "motivating factor" because, in a sense, they must. In history, no normative enterprise need constrain one's investigation of cause and effect. Often, one can be satisfied by merely showing that some underappreciated factor had a part in human affairs.

When it comes to constitutional history, pressing a bit harder on the relationships among causal factors can yield insights as to how the political order operates. We might wish to know the relative power political and legal actors have in practice, the social conditions under which an influence on the law can be exerted, and the tools available for acts of constitutional meaning-making and transformation.

A fascinating case study can be found in the U.S. Supreme Court's switch on the constitutionality of the coerced flag salute in the early 1940s. As America geared up for war, the Justices originally held in Minersville School District v. Gobitis that national unity counseled against recognizing a First Amendment right to refuse to salute the American flag. Three years later, the High Court abruptly reversed course, concluding in the famous Barnette case that respect for pluralism and individuality favored vindicating the Jehovah Witnesses' claim.

What best explains the sudden change? Two of the stronger explanations for the switch involve the wave of terror against Jehovah's Witnesses after the first ruling, vividly documented by Shawn Francis Peters; and changes in the Court's personnel in the intervening years (as analyzed in numerous judicial biographies).

In Reconsidering Gobitis: An Exercise in Presidential Leadership, which is hot off the presses, I offer an alternative account: the extra-judicial words and deeds of the Roosevelt administration played a significant role in the Supreme Court's turnabout. These actions signaled that the right of conscience was a presidential priority and framed such a right as the legacy of a just war. No brief was filed by the United States government in either lawsuit, but archival documents show that Robert Jackson kept FDR apprised of developments in Barnette. Department of Justice lawyers authored an article laying the extra-legal violence against the Jehovah's Witnesses squarely at the feet of the Supreme Court, urging the Justices to undo the damage by reversing themselves, and suggesting that such a corrective would implement the president's agenda, "The Four Freedoms." Speeches by key aides emphasized religious liberty and conscience, all while denying public support to Gobitis; these speeches were prominently quoted by the litigants. Finally, Robert Jackson's early drafts of Barnette suggest that the Justices and law clerks were aware of these executive branch efforts, though most of these references were later excised or downplayed during the opinion writing process, effectuating an erasure of presidential action.

Who has the better of the historical argument? What lessons can be drawn if we view this sequence of events as a sophisticated exercise in what Keith Whittington calls "political construction" of the Constitution?

Now on SSRN: Law, War, and the History of Time

My new paper, Law, War, and the History of Time, is now available on SSRN. It is very much a work-in-progress, and I would appreciate any feedback. Here's the abstract:

Assumptions about time are an aspect of the basic architecture of our thinking about law and war. Time is thought to be linear and episodic, moving from one kind of time (peacetime) to another kind of time (wartime) in sequence. Law is affected by what time it is, with a pendulum swinging from greater government power and lesser rights during wartime, to the opposite in peacetime. Drawing upon works on the history of time, this paper argues that our conception of "wartime" is culturally constructed and historically contingent. This understanding of war and time is also in tension with the practice of war in 20th century U.S. history.

The paper turns to World War II, which is thought of as a traditional war, with clear temporal limits. But this war is harder to place in time than is generally assumed, as the different legal endings to the war span over a period of seven years. The fuzziness in the war's timing affects scholarship on rights and war, as scholars who believe themselves to be writing about the same wartime are not always studying the same years.

The difficulty in confining World War II in time is an illustration of a broader feature of the twentieth century: wartimes bleed into each other, and it is hard to find peace on the twentieth century American timeline. Meanwhile, as all twentieth century wars occurred outside U.S. borders, a feature of American military strategy has sometimes been to increase the engagement of the American people in a war, and at other times to insulate them. Isolation from war enabled the nation to participate in war without most citizens perceiving themselves to be in a wartime. The essay closes with a discussion of the way anxiety about temporality surfaces in contemporary cases relating to Guantanamo detainees.

The paper is part of a larger project that places war at the center of 20th century U.S. law and politics, rather than viewing war as something that had an episodic impact.

Wildenthal on Commentary on Nationalizing the Bill of Rights, 1867-73

Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867-73 is a new article by Bryan H. Wildenthal, Thomas Jefferson School of Law. It will appear in the Journal of Contemporary Legal Issues (2009). Here's the abstract:

This Article is part of a Symposium, "The Fourteenth Amendment and the Bill of Rights: What Have We Learned? Why Does It Matter?" (University of San Diego School of Law, Center for the Study of Constitutional Originalism, Jan. 7, 2009). The general topic of the Symposium, and the articles growing out of it, is the so-called "incorporation debate." That debate concerns whether and to what extent the Bill of Rights (originally applicable only to the federal government) has properly been "incorporated," "enforced," "applied," or "nationalized" (pick your terminology) against the states. Everyone agrees that such a goal was embraced by some leading Reconstruction Republicans, such as Rep. John Bingham and Sen. Jacob Howard. But scholars continue to debate whether (or how broadly) the idea was shared in Congress, out in the states during the ratification process, or among the bench, bar, press, and public generally. This issue has become newly current given speculation that the Supreme Court, in the wake of District of Columbia v. Heller, 128 S. Ct. 2783 (2008), may apply to the states the Second Amendment right to bear arms.

The particular focus of this Article is on what may be learned from the scholarly and press commentary on the Amendment from 1867 to 1873 (up to before the Slaughter-House Cases decided in April 1873). How much weight should such commentary (mostly post-ratification) have as a general matter? Does the commentary support the incorporation thesis or undermine it? The writers considered include well-known legal scholars of the era such as Cooley, Bishop, Wharton, Pomeroy, Farrar, and Paschal, and also a less-well-known but arguably significant figure, Samuel Smith Nicholas of Kentucky. Articles in "The Nation," then a leading Republican-oriented newsmagazine (founded in 1865), and some other news articles, are also considered. While this Article has sought to be thorough in assessing relevant scholarly discussions published in book or law review form during the period covered, it does not exhaustively survey all of the archival newspaper or magazine materials that have recently become more readily available. More work remains to be done in future articles.

This Article concludes that, on the whole, the commentary during this period supports the thesis that nationalizing the Bill of Rights was part of the original public meaning of the Amendment, though the evidence is certainly mixed and others may draw different conclusions. The Article offers some cautious and tentative thoughts about the broader theory of originalism, but generally remains focused on the historical details.

Other articles in this Symposium deal with various related historical and theoretical issues. This Article offers a number of responses to the other articles, all of which will be published in Voume 18 of the University of San Diego's Journal of Contemporary Legal Issues. The other articles posted so far on SSRN include: Michael Kent Curtis, "The Bill of Rights and the States: An Overview From One Perspective," 18 J. Contemp. Legal Issues --- (forthcoming 2009) (http://ssrn.com/abstract=1334687); Kurt T. Lash, "Beyond Incorporation," 18 J. Contemp. Legal Issues --- (forthcoming 2009) (http://ssrn.com/abstract=1323431); and Lawrence B. Solum, "Incorporation and Originalist Theory," 18 J. Contemp. Legal Issues --- (forthcoming 2009) (http://ssrn.com/abstract=1346453).

Reviewed: Freeberg, Democracy's Prisoner, and Capozzola, Uncle Sam Wants You

DEMOCRACY'S PRISONER: Eugene V. Debs, the Great War, and the Right to Dissent, by Ernest Freeberg and UNCLE SAM WANTS YOU: World War I and the Making of the Modern American Citizen by Christopher Capozzola are reviewed by Eric Arnesen in the Boston Globe. These books, Arnesen writes, "revisit the issues of dissent, obligation, and repression in their new books on the World War I era. The stories they tell, in part, are familiar ones: In a nation divided over entry into the Great War, the Wilson administration grossly abridged civil liberties."

Freeberg "explores the arrest, prosecution, and imprisonment of Eugene V. Debs and the subsequent campaign to free him from a federal penitentiary." The author's "contribution lies in his treatment of the movement for Debs's release."

Governmental repression is only one of the subjects of Capozzola's broader but more academic study. Wartime mobilization, he argues, redefined the citizen's relationship to the state. A Selective Service Act touched unprecedented numbers of American men; federal officials scrutinized conscientious objectors and registered German aliens; and agencies issued vast streams of pro-war propaganda. Yet "Americans consistently needed less outright repression than the wartime alarmists claimed," for countless people eagerly volunteered to police themselves and their communities by physically attacking strikers, burning books, and even lynching suspected traitors. During the war, the "actions of repressive state institutions, private organizations, and spontaneous crowds left more than seventy Americans dead and thousands terrorized by tar, flame, or the noose," Capozzola writes. Uncle Sam "invoked a culture of obligation," and many Americans readily complied.

Wartime repression, both books illustrate that it also "generated principled and eloquent opposition." Arneson concludes, "In their timely, readable, and engaging books, Freeberg and Capozzola remind us of the fragility of rights in the context of fear, providing us with cautionary tales about what is lost when unquestioned political obligations trump the preservation of liberty."

Read the rest here.

Goldstein on The Attorney General's List of Subversive Organizations

American Blacklist: The Attorney General's List of Subversive Organizations by Robert Justin Goldstein has just been published by the University Press of Kansas. Here's the book description:

Resonating with disturbing implications for the present, American Blacklist is the only full-length study of the so-called Attorney General’s List of Subversive Organizations (AGLOSO) and its critical role in the post–World War II Red Scare.

Although earlier versions of AGLOSO date back as far as 1903 and were wielded by the federal government during both the post–World War I Red Scare and World War II, they were not widely publicized. But beginning in December 1947, as part of the Truman administration’s loyalty program, the federal government engaged in a massive effort to publicize the AGLOSO lists. In the process, it threatened, damaged, or destroyed nearly 300 organizations, all of which were listed without any notice, evidence, or hearings.

Drawing heavily on previously classified FBI, Justice Department, and other documents, Robert Goldstein demonstrates how the listed organizations and their members (including a large number of federal employees) came under suspicion, were investigated, and suffered numerous public and private penalties. These included the loss of federal tax-exempt status, the denial of passports, deportations and immigration exclusions, ejection from federally subsidized housing, and private employment bans. AGLOSO, which was dominated by J. Edgar Hoover’s FBI, also placed a huge damper on political dissent throughout the nation.

After 1954, AGLOSO and the Red Scare both came under increasing attack as serious violations of American civil liberties. Indeed, AGLOSO’s declining significance after 1954 reflected a more general decline in the postwar Red Scare campaign itself. Both gradually diminished in impact and importance, but they left a long-lasting legacy.

As Goldstein reveals, AGLOSO’s final demise in 1974 resulted from congressional opposition to President Richard Nixon’s attempt to revive it via a 1971 executive order, which was severely attacked as an abuse of executive authority and an attack on civil liberties—issues that have continued relevance in the current war on terror.

And the blurbs:

“Goldstein has done the country a great service, offering the definitive history of one of the most important mechanisms for political censorship ever devised in American history. The story of the blacklist, never told before because until now its operation was shrouded in secrecy, is a cautionary one for our times, and should be read by all who care about preserving the liberties that characterize our nation at its best.”—David Cole, author of Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism

“Few American scholars have devoted as much time and energy to uncovering the many faces of political repression as Robert Justin Goldstein. His work is an invaluable guide for anyone who wants to find out how dissent gets repressed in a modern democratic society.”—Ellen Schrecker, author of Many Are the Crimes: McCarthyism in America

“American Blacklist is an important and timely book. For one, it significantly expands our understanding of the politics of anti-Communism of the Cold War years and of the questionable practices of the Truman, Eisenhower, and Nixon administrations and of the FBI. It is also a sobering reminder of the costs and consequences inherent in the secret, at times mindless responses of the Bush administration to the 9/11 terrorist attack.”—Athan Theoharis, author of The FBI and American Democracy: A Brief Critical History

“Many bizarre rites of the McCarthy Era took place in the shadow of the Attorney General’s List of Subversive Organizations. Until now, this looming Sphinx has remained a potent but mute mystery. At last Goldstein unravels, definitively and intriguingly, the tangled story of this crucial artifact of America’s red scares.”—Richard M. Fried, author of Nightmare in Red: The McCarthy Era in Perspective and Men Against McCarthy

Reviewed: Books on Seneca Falls, Lincoln at War, and Txtng

Seneca Falls and the Origins of the Women's Rights Movement by Sally G. McMillen (Oxford Univ. Press) is reviewed by Tim Stafford at Books and Culture. Stafford finds it "a very readable, brief history—just what someone needs to begin to learn about the early trajectory of women's rights in America."

TRIED BY WAR: Abraham Lincoln as Commander in Chief by James M. McPherson (The Penguin Press) is reviewed by Jean Edward Smith in the New York Times. She finds the book "a perfect primer, not just for Civil War buffs or fans of Abraham Lincoln, but for anyone who wishes to under­stand the evolution of the president’s role as commander in chief....McPherson draws on almost 50 years of research to present a cogent and concise narrative of how Lincoln, working against enormous odds, saved the United States of America."

Fans of Louis Menand, particularly his brilliant essay "The End Matter," as well as anyone who has ever met a teenager, will have an interest in "Thumbspeak," a review of David Crystal, Txtng: The Gr8 Db8 (Oxford) in the New Yorker. According to Menand, Crystal's "conclusions are predictable: texting is not corrupting the language," etc. "It is good to know that the estimated three billion human beings who own cell phones, and who use them to send more than a trillion text messages every year, are having no effect on anything that we should care about."

Hardy on The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights

The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights, edited and annotated by David T. Hardy, have been posted on SSRN. Here's the abstract:

St. George Tucker was a prominent legal figure in the early Republic. He taught law at William and Mary from 1790 to 1804, and in 1803 published the first edition of Blackstone's Commentaries to be annotated with American legal references. This paper is a transcription of his lecture notes dealing with the Bill of Rights, which are archived in the Swem Library of the College of William and Mary. The body of the text appears to date from 1791-92, with some footnotes added at later dates. It is thus significant evidence of original public understanding.

Tucker's view of the Bill of Rights, written within months of its ratification, is modern and robust. Like Justice Black, he is a First Amendment absolutist. He sees the Second Amendment as an individual right. He considers the Fourth Amendment's warrant requirement as a subset of its reasonableness mandate. He sees the Fifth Amendment prohibition on takings as a response to Revolutionary War "impressment" of personal property for military use.

Tucker's edition of Blackstone's Commentaries is available on-line.

Fisher on The Constitution and 9/11

The Constitution and 9/11: Recurring Threats to America's Freedoms, a new book by Louis Fisher, a leading scholar of executive power at the Congressional Research Service, has just been published by the University Press of Kansas. Here's the book description:

The announced purpose of U.S. antiterrorist policies after 9/11 was to bring democracy and the rule of law to the Middle East. At home, those values were regularly threatened by illegal, unconstitutional, secret, and unaccountable programs. The Bush administration claimed that terrorists hate America for its freedoms, yet its actions jeopardized those freedoms and brought the reputation of the United States lower in the eyes of the world.

Government surveillance. Suspension of habeas corpus. Secret tribunals. Most Americans would recognize these controversial topics from today’s headlines. Unfortunately, as Louis Fisher reminds us, such violations of freedom have been with us throughout our history—and continue to threaten the Constitution and the rights that it protects.

Distilling more than two centuries of history into a panoramic and compelling narrative, Fisher chronicles the longstanding tension between protecting our constitutional rights and safeguarding national security, from the Whiskey Rebellion to the McCarthy hearings to George W. Bush’s “War on Terror.” Along the way, he raises crucial questions regarding our democracy’s ongoing tug-of-war between secrecy and transparency, between expediency and morality, and between legal double-talk and the true rule of law.

Fisher focuses especially on how the Bush administration’s responses to 9/11 have damaged our constitutional culture and values, threatened individual liberties, and challenged the essential nature of our government’s system of checks and balances. His close analysis of five topics—the resurrection of military tribunals, the Guantánamo detainees, the state secrets privilege, NSA surveillance, and extraordinary rendition—places into sharp relief the gradual but relentless erosion of fundamental rights along with an enormous expansion and concentration of presidential power in the post-9/11 era.

For Fisher, the Constitution’s strength as a guarantor of freedom and rights is only as sound and reliable as our own commitment to the values it describes. Each generation of Americans is asked in essence: do you want a republic or a monarchy? Benjamin Franklin, of course, famously responded: “A republic, if you can keep it.” Fisher’s book reminds us of the political principles we need to rediscover to keep our nation free.

LOUIS FISHER is the author of more than a dozen books, including Presidential War Power, Military Tribunals and Presidential Power, In the Name of National Security, and Constitutional Conflicts between Congress and the President, now in its fifth edition.

And here are the blurbs:

“Fisher brilliantly illuminates our predicament, explaining how we abandoned cherished principles of law and human dignity, and how we might yet live up to our own ideals.”—Steven Aftergood, Project on Government Secrecy, Federation of American Scientists

“Demonstrates in chilling detail how American law and the courts have failed repeatedly to protect our liberties. . . . A treasure house of information and an invaluable guide for scholars, students, and citizens.”—Aziz Huq, coauthor of Unchecked and Unbalanced: Presidential Power in a Time of Terror

“A comprehensive, striking, and disturbing analysis of executive misuse of power that is made all the more compelling by placing it in a rich and fascinating historical context.”—William G. Weaver, coauthor of Presidential Secrecy and the Law

Fox on Citizenship under Jim Crow

Intimations of Citizenship: Repressions and Expressions of Equal Citizenship in the Era of Jim Crow is a new paper by James W.Fox, Jr., Stetson University College of Law. Here is the abstract:

On first blush the Jim Crow Era may seem an odd place to locate anything meaningful about democratic, equal citizenship and the promise of the fourteenth amendment. This article argues to the contrary. The period of Jim Crow, in its negation of democratic citizenship, in fact reveals import aspects about the nature of democratic citizenship. This occurred in two ways. First, whites who implemented white supremacy implicitly understood that freedom and citizenship manifest themselves in a multiplicity of spheres, which is why white supremacists sought to subordinate blacks not just politically but across all social spheres. Second, the resistance to comprehensive subordination revealed the multiplicity of the spirit of freedom and equality in actions and arguments African Americans. African Americans created spaces of democratic citizenship within the dominant culture of subordination. This article suggests that, in studying both the implementation of white supremacy and the resistance to it, we can learn more about how equal and democratic citizenship can be affirmed and implemented rather than negated, and also about the role of law as a tool for both subordination and resistance.

DC Area Legal History Roundtable

The D.C. Area Legal History Roundtable is an informal gathering of scholars who live or work in and around Washington, D.C. It first met in 2006 at George Washington University Law School and later at the law schools of American University and the Catholic University of America. It will reconvene on Friday, September 19, 2008, at the Georgetown University Law Center. The two-panel program appears below; abstracts, papers, and information on registration and other matters are here.

STATE-BUILDING AND CITIZENSHIP IN AMERICA, 1763-1920
Friday, September 19, 2008
Noon-4:00

Georgetown University Law Center
600 New Jersey Ave., N.W.
Washington, DC 20001-2075

Customs and Commerce in Antebellum America

Alexander Hamilton and the Problem of Revenue in the Age of the American Revolution
Gautham Rao, University of Chicago

Policy Entrepreneurship and the Warehousing Act of 1846
Phillip W. Magness, George Mason University

Comments:
Lawrence Peskin, Morgan State University
James May, Washington College of Law, American University

Moderator: Adam Mossoff, George Mason University Law School

Citizenship and Protest: Puerto Rican Workers and American Suffragettes

A Rightless Status for Puerto Ricans: The Twilight of U.S. Citizenship, 1909-1917
Sam Erman, University of Michigan

Parades, Pickets, and Prison: Alice Paul and the Virtues of Unruly Constitutional Citizenship
Lynda G. Dodd, Washington College of Law, American University

Comments:
Daniel Ernst, Georgetown University Law Center
Robyn Muncy, University of Maryland

Moderator: Tanya Hernandez, George Washington University Law School

Washburn reviews Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003

Dishonorable Passions: Sodomy Laws in America, 1861-2003 by William N. Eskridge Jr. (Viking) is reviewed in the San Francisco Chronicle by Michael Washburn, Center for the Humanities, City University of New York. According to Washburn, "As Eskridge details in this exhaustive - sometimes exhausting - volume, when regulating homosexual desire, our courts have often endorsed the most anxious logic of American society's moral panic." The book is "best in its discussion of post-Stonewall litigation, especially the 17 years between Bowers vs. Hardwick and Lawrence vs. Texas, when the gay community experienced its own truncated journey from Dred Scott to the 14th Amendment." While the reviewer sometimes finds the book heavy reading, "the chapters on these cases are riveting."