Mildred Loving

"When my late husband, Richard, and I got married in Washington, DC in 1958, it wasn't to make a political statement or start a fight. We were in love, and we wanted to be married.

"We didn't get married in Washington because we wanted to marry there. We did it there because the government wouldn't allow us to marry back home in Virginia where we grew up, where we met, where we fell in love, and where we wanted to be together and build our family."

Mildred Loving, one of the parties in the landmark case overturning Virginia's ban on interracial marriage, wrote these words, and an evocative recollection, for the commemoration of the 40th anniversary of Loving v. Virginia last year. She is remembered today, following her death at 68.

When the ACLU took up their case, and attorney Bernard S. Cohen tried to explain the legal theories they would rely on, Richard Loving replied, “Mr. Cohen, tell the court I love my wife, and it is just unfair that I can’t live with her in Virginia.”

Six from Finkelman on slavery, the 14th Amendment, James Madison and more

Paul Finkelman, Albany Law School, a leading historian of American slavery and other topics, has posted a number of articles, recent and not so recent, on SSRN.

John Bingham and the Background to the Fourteenth Amendment appeared in the Akron Law Review (2003).

An understanding of the Fourteenth Amendment begins not in Congress, but in the history leading up to the Civil War. The first crucial story in understanding the Fourteenth Amendment is the striking changes in the law of race relations that took place in the North - especially in Bingham's home state of Ohio - in the dozen or so years before the Civil War began. The second story is about the South, and the legal repression and brutal racial violence that took place there immediately after the Civil War ended. These two stories complement each other. The first gives insight into the legal and political history that shaped Bingham's thoughts about race and his aspirations for a racially just society. The second helps understand what Bingham was struggling against in drafting Section one of the Fourteenth Amendment, and thus illuminates what he hoped the Amendment would accomplish.

Legal Ethics and Fugitive Slaves: The Anthony Burns Case, Judge Loring, and Abolitionist Attorneys was published in the Cardozo Law Review (1996).

The Anthony Burns case paralyzed Boston for a week while lawyers debated Burns's debate before United States Commissioner Edward G. Loring, and stimulated a evolution in public antislavery sentiment in Massachusetts. This Article explores the issues of legal ethics through an analysis of the rendition of Anthony Burns, the most famous return of a fugitive slave in American history, and the key figures in the legal proceedings.

Fugitive Slaves, Midwestern Racial Tolerance, and the Value of "Justice Delayed" was published in the Iowa Law Review (1992).

Despite the importance of swift justice, there are times when justice delayed can be justice acquired. This Article examines two cases that explore the problem of delaying justice in the context of fugitive slave renditions in the antebellum Midwest.A careful reexamination of legal developments and cases in the antebellum North shows far greater complexity and ambiguity in Northern race relations than the generally bleak picture that scholars paint. The cases detailed in this article underscore the point that the North was far less racist than many scholars have claimed, and in the process tell us something about the meaning of race and race relations in antebellum America and in our own times as well.

International Extradition and Fugitive Slaves - The John Anderson Case appeared in the Brooklyn Journal of International Law (1992).

The John Anderson extradition case of 1860-61 was the last attempt to remove a fugitive slave from Canada, and underscores the uncertain protection the Union Jack offered fugitive slaves and the extent to which Canadians were not immune to Negrophopia and racism.This article uses the John Anderson case as an example of the tensions between law, justice and international politics in the antebellum era, and to illustrate the ambiguities of the 1842 Webster-Ashburton Treaty.

James Madison and the Bill of Rights: A Reluctant Paternity was published in the Supreme Court Review (1990).

In 1789, James Madison, despite opposition from former federalist allies, introduced a series of twelve constitutional amendments to the newly formed Congress, ten of which were ratified in 1791; earning him the title `father of the Bill of Rights.' This article explores the route Madison's reluctant support of the amendments and the political realities that forced him to take his well-earned place in the history of liberty.

Exploring Southern Legal History appeared in the North Carolina Law Review (1985).

As interest in legal history increases, many scholars have begun to examine what role regionalism - particularly southern regionalism - has played in the growth of American law, realizing that through legal history they can better understand the law they study, practice, and apply.This essay discusses southern legal history through an examination of race relations, violence, crime, legal institutions, and legal culture, concluding that marked differences exist between northern legal history and southern legal history.

Garnett on "No Taking Without a Touching?" Questions from an Armchair Originalist

'No Taking Without a Touching?' Questions from an Armchair Originalist, is a new paper from Nicole Stelle Garnett, Notre Dame Law School. It is forthcoming in the San Diego Law Review. Here's the abstract:

This paper is an invited contribution to the Bernard Siegan Memorial Conference on Economic Liberties, Property Rights, and the Original Meaning of the Constitution at the University of San Diego School of Law. The paper poses three questions about the historical evidence used to support the dominant academic view that the Fifth Amendment's Takings Clause, as originally understood, extended only to physical appropriations or invasions of private property. First, the paper questions the relevance of state and local regulatory practices to the pre-incorporation understanding of the Takings Clause. Second, the paper expresses concern about the use of state-court cases decided well into the nineteenth century to elucidate the meaning of a late-eighteenth-century legal provision. Finally, the paper asks whether the state decisions frequently cited for the "no taking without a touching" principle might have been answering different questions than the modern "regulatory takings" problem.

Farber, Security v. Liberty: Conflicts Between Civil Liberties and National Security in American History

SECURITY V. LIBERTY: CONFLICTS BETWEEN CIVIL LIBERTIES AND NATIONAL SECURITY IN AMERICAN HISTORY, edited by Daniel Farber, U.C. Berkeley -- Boalt School of Law, has just been published by the Russell Sage Foundation. Farber has posted this abstract on SSRN:

Threats to national security generally prompt incursions on civil liberties. The relationship has existed since the presidency of John Adams and has continued through two World Wars, the Cold War, Vietnam, and to the present day. Though this historical phenomenon is commonplace, the implications of that history for our post-9/11 world are less clear.

In the long run, if we are to cope with present and future crises, we must think deeply about how our historical experience bears on a changing world. This book, published by the Russell Sage Foundation, addresses the past and present relationship between civil liberties and national crises, with contributions from leading legal scholars and historians. They seek both to draw historical lessons and to explore how the present situation poses unique issues. The contributors include Alan Brinkley, Daniel Farber, Stephen Holmes, Ronald D. Lee, Jan Ellen Lewis, L.A. Powe, Jr., Ellen Schrecker, Paul M. Schwartz, Geoffrey R. Stone, and John Yoo.

Russell Sage has a more extensive book description, including this description of some chapters:

Security v. Liberty focuses on periods of national emergency in the twentieth century—from World War I through the Vietnam War—to explore how past episodes might bear upon today’s dilemma. Distinguished historian Alan Brinkley shows that during World War I the government targeted vulnerable groups—including socialists, anarchists, and labor leaders—not because of a real threat to the nation, but because it was politically expedient to scapegoat unpopular groups. Nonetheless, within ten years the Supreme Court had rolled back the most egregious of the World War I restrictions on civil liberties. Legal scholar John Yoo argues for the legitimacy of the Bush administration’s War on Terror policies—such as the detainment and trials of suspected al Qaeda members—by citing historical precedent in the Roosevelt administration’s prosecution of World War II. Yoo contends that, compared to Roosevelt’s sweeping use of executive orders, Bush has exercised relative restraint in curtailing civil liberties. Law professor Geoffrey Stone describes how J. Edgar Hoover used domestic surveillance to harass anti-war protestors and civil rights groups throughout the 1960s and early 1970s. Congress later enacted legislation to prevent a recurrence of the Hoover era excesses, but Stone notes that the Bush administration has argued for the right to circumvent some of these restrictions in its campaign against terrorism. Historian Jan Ellen Lewis looks at early U.S. history to show how an individual’s civil liberties often depended on the extent to which he or she fit the definition of “American” as the country’s borders expanded. Legal experts Paul Schwartz and Ronald Lee examine the national security implications of rapid advances in information technology, which is increasingly driven by a highly globalized private sector, rather than by the U.S. government.

Calabresi and Agudo on Individual Rights Under State Bills of Rights When the Fourteenth Amendment Was Ratified

Steven G. Calabrasi, Northwestern, and Sarah E. Agudo, Northwestern and Harvard, JFK School of Government, have posted a new article, Individual Rights Under State Bills of Rights When the Fourteenth Amendment Was Ratified in 1868: What Rights are Deeply Rooted in American History and Tradition? It is forthcoming in the Texas Law Review. Here's the abstract:

A consistent theme of the U.S. Supreme Court's substantive due process caselaw over the last thirty years has been that, at a bare minimum, rights that are deeply rooted in history and tradition are constitutionally protected by the Fourteenth Amendment against state infringement. Some justices think the Fourteenth Amendment protects newer unenumerated rights as well, but all the justices including Scalia and Thomas agree that it protects unenumerated rights that are deeply rooted in history and tradition.

Given this, we thought it would be valuable to do a survey of exactly what rights were protected under state bills of rights in 1868 when the Fourteenth Amendment was ratified. We thus do a nose-count of rights protected by the thirty-seven state constitutions in 1868. We found that almost all of the rights in the federal Bill of Rights were also recognized as being fundamental rights by state bills of rights in 1868. We think this finding may be significant because it may suggest that the incorporation of the rights in the federal Bill of Rights on the ground that they were fundamental rights protected as a matter of Fourteenth Amendment substantive due process was correct. We found in addition that several provisions of the federal Bill of Rights that have not been incorporated arguably ought to have been incorporated. Our evidence suggests that the Seventh Amendment right to civil jury trial and the right to indictment by a Grand Jury probably ought to be incorporated. Perhaps surprisingly, the case for incorporation of the Second Amendment right to keep and bear arms as an individual right is a closer question.

We also found that state bills of rights protected a number of rights as being fundamental in 1868 that are not in the federal Bill of Rights. The most important such right is the right to a public school education, which was recognized in some form in thirty-six out of thirty-seven state constitutions in 1868. This provides new and never before published evidence of why Brown v. Board of Education was correctly decided. This finding alone is an incredibly striking one. In addition, it turns out that an Article V consensus of more than three-quarters of the state bills of rights in 1868 recognized either that there were natural law rights that were not enumerated in the state bills of rights which were just as important as the enumerated rights or that the enumeration of specific rights in state bills of rights ought not to be construed to deny or disparage other retained by the people. This is an exceptionally important finding because it suggests that if one looks at what rights are deeply rooted in history and tradition in state positive constitutional law in 1868, it turns out that as a matter of state positive law at that time the existence of unenumerated rights was taken for granted. This means that the whole effort of cabining substantive due process by looking at history and tradition may well be circular since history and tradition just point us back to natural law as it was understood in 1868.

Siegel on Injunctions for Defamations, Juries, and the Clarifying Light of 1868

Stephen A. Siegel, De Paul University College of Law, has posted a new article, Injunctions for Defamation, Juries, and the Clarifying Light of 1868. It is forthcoming in the Buffalo Law Review. Here's the abstract:

This article raises two issues of contemporary constitutional law. The first is a question of free speech: the propriety of the judiciary's current retreat from the traditional rule that equity cannot enjoin defamatory speech, which until now has been one of the unwavering precepts of the American law of remedies. The second is a question of constitutional jurisprudence: when determining the rights that citizens have against state government, should jurists who consider themselves originalists seek the meaning of the Bill of Rights in 1789, when the Bill was first adopted, or in 1868, when the Fourteenth Amendment made it applicable to the states?

As a contribution to the judiciary's reassessment of the traditional no injunction for defamation rule, this Article revises our understanding of rule's history and discusses the implications of that revision for the current debate on the no injunction rule's continued propriety. The historiography of the rule traces back to Roscoe Pound's 1916 article Equitable Relief Against Defamation and Injuries to Personality. In Pound's view, the rule was not settled at the nation's founding. I will argue that it was. Also in Pound's view, the rule was founded on such anachronistic concerns as the limitation of equity's jurisdiction to the protection of property rights. I will argue that it was founded in on considerations that still should influence us: distrust of judges and respect for the role of juries in free speech controversies.

In light of this argument, the Article suggests that if it is proper to depart from the traditional no injunction rule, the Supreme Court should find that the First Amendment imposes two jury-centered limitations on the departure: 1) no injunction may issue without a jury determination that the speech was defamatory; and 2) no injunction be enforced without a jury determination that the injunction was violated by speech that continues to be defamatory. By insisting on the inclusion of a jury in both the liability and enforcement proceedings, the insight of the constitution makers of the importance of a popular check on government regulation of speech may be retained.

As a contribution to the practice of originalism, this Article establishes a historical point with which Pound had no concern: the evidence supporting the claim that the no injunction for defamation rule was an established aspect free speech is far more clear and abundant if we consider the Reconstruction era rather than the nation's Founding. This point illustrates the importance, when discussing the limitations imposed by the Fourteenth Amendment on the states, of shifting the focus from the meaning of the Bill of Rights in 1791 to its meaning in 1868.

In this way, the paper contributes to the substantive debate on the future of the no injunction for defamation rule while it illustrates the importance of focusing on the evolution of Bill of Rights norms between 1789 and 1868 when interpreting the restrictions the Fourteenth Amendment imposes on the states.

Andrews on The Human Rights Movement at Middle Age

Penelope Andrews, CUNY School of Law, has posted a new essay, Some Middle-Age Spread, a Few Mood Swings, and Growing Exhaustion: The Human Rights Movement at Middle Age. It appeared in the Tulsa Law Review (2006). Here's the abstract:

This paper was presented at a symposium, "The Scholar as Activist", dedicated to the work of Nadine Strossen, President of the ACLU. This paper focuses on the subject of international human rights law and the engagement of scholars as activists in this area of law. At fifty-plus years, and therefore soundly middle aged, the global human rights project today provides occasion for reflection and evaluation. This paper observes that human rights have increasingly become the language of progressive politics. In many ways, this focus on human rights globally echoes the struggle for civil liberties and civil rights in the United States in earlier decades. Then, despite widespread opposition, the vision of a society underpinned by human rights and dignity seemed attainable; this emboldened generations of activists and inspired many scholars. And sometimes, inspiration and boldness merged to shape the scholar as activist. The path-breaking contributions of scholars like John Hope Franklin, C. Vann Woodward, and Kenneth Clark to the 1954 decision of Brown v. Board of Education reflect the scholar as activist in the finest light. Using the South African democratic process as a case in point, the article assesses the transformative potential of human rights law.

Two from Green on Equal Protection Revisionism

Christopher R. Green, University of Mississippi, has posted two new papers calling for a revisionist approach to the Equal Protection Clause. The first is: The Original Sense of the Equal) Protection Clause: Pre-Enactment History. Here's the abstract:

The Supreme Court has long understood the Equal Protection Clause - "[N]or [shall any State] deny to any person within its jurisdiction the equal protection of the laws" - as a generic antidiscrimination provision. This article challenges that interpretation. Applying a constitutional theory that takes the sense historically expressed by constitutional language as interpretively binding, but not that language's historically-understood or historically-intended referent, I argue that the Clause instead requires States to supply "the protection of the laws" - and supply it equally - to everyone subject to the State's decrees. This article reviews evidence from the 1866 Congressional debates, explains how the language of the Clause in its historical setting expresses the allegiance-for-protection contractual tradition, documents the extensive tradition of using "the protection of the laws" to refer to the remedial and law-enforcement functions of government, and criticizes the textual foundation of the traditional view of the Clause. Elsewhere I consider subsequent interpretations of the Clause and explain why a duty-to-protect Equal Protection Clause would have great significance today.

Green's second paper is The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application. Here's the abstract:

The Supreme Court has long understood the Equal Protection Clause--"[N]or [shall any State] deny to any person within its jurisdiction the equal protection of the laws"--as a generic antidiscrimination provision. This article challenges that interpretation. Applying a constitutional theory that takes the sense historically expressed by constitutional language as interpretively binding, but not that language's historically-understood or historically-intended referent, I argue that the Clause instead requires States to supply "the protection of the laws"--and supply it equally--to everyone subject to the State's decrees. Elsewhere I consider how the allegiance-for-protection contractual tradition and the history of "the protection of the laws" support a duty-to-protect reading of the Clause. This article reviews how a duty-to-protect reading of the Equal Protection Clause was adopted in the Civil Rights Act of 1871 and explained at great length in the debates leading to it, and argues that the Privileges or Immunities Clause, which speaks of the rights of citizens, makes far more sense than the Equal Protection Clause as a provision forbidding second-class citizenship and civil inequality. The duty-to-protect view found a few early judicial adherents, but it was soon swamped by a generic antidiscrimination reading after Slaughterhouse. A duty-to-protect Equal Protection Clause would forbid gross misbehavior in the provision of protective services, act as an open-courts provision akin to Magna Charta paragraph 40 and related state-constitutional provisions, require that police services be supplied equally, forbid inequalities like race-based jury nullification that favor criminal or civil defendants, fill a gap in the reasoning in Roe v. Wade on the inference from fetal personhood to the requirement of protection, require that the marital rape exemption be abandoned, suggest serious constitutional troubles for our current system of prosecutorial discretion, and allow the federal government to provide enforcement and remedial services when states have failed to do so.

Drafting the Future of Human Rights

"2048: DRAFTING THE FUTURE OF HUMAN RIGHTS" will be held at Boalt Law School (U.C. Berkeley) tomorrow. Speakers include Mary Robinson, Past President of Ireland and a former United Nations High Commissioner for Human Rights, and Robert Haas, Chairman Emeritus of Levi's and Karima Bennoune, Professor, Rutgers University, Board Member, Amnesty International USA.

The historical context will be addressed at an afternoon panel: "Looking Back on the Future of Human Rights: 1948, Race, and the Cold War."

Panelists:

Jonathan Simon, Associate Dean for Jurisprudence and Social Policy, UC Berkeley (moderator).

Carol Anderson, Professor of History, University of Missouri, author of "Eyes Off the Prize: The United Nations and the African American Struggle for Human Rights."

Elizabeth Borgwardt, Professor of History, Washington University in St. Louis, author of "A New Deal for the World: America's Vision for Human Rights." (She is unable to attend, but her book is essential reading.)

Mary L. Dudziak, Judge Edward J. and Ruey L. Guirado, Professor of Law, History, and Political Science, University of Southern California, author of "Cold War Civil Rights: Race and the Image of American Democracy" and "Exporting American Dreams: Thurgood Marshall's African Journey."

The program and on-line resources on the Universal Declaration of Human Rights are here.

Davies on Correcting Search-and-Seizure History

Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Arrest Standards and the Original Meaning of Due Process of Law, is a new article by Thomas Y. Davies, University of Tennessee. It appeared in the Mississippi Law Journal (2007). Here's the abstract:

The conventional view that search-and-seizure history is simply Fourth Amendment history is incorrect. Sir Edward Coke explicated common-law standards for warrantless arrest in detail in his discussion of the due process of law required by Magna Carta's the law of the land chapter, and the Framers were undoubtedly conversant with that treatment. Moreover, framing-era warrantless arrest standards were virtually unchanged from Coke's time.

The framing-era warrantless arrest standards were more demanding than the modern bare probable cause standard. Warrantless felony arrests required (1) a felony having actually been committed in fact and (2) the arresting person personally having probable grounds to suspect the arrestee. Warrantless nonfelony arrests were limited to on-going breach-of-peace offenses.

Because arrest standards appeared noncontroversial, the initial State Framers were content to preserve arrest standards in provisions that prohibited a person being taken or arrested except according to the law of the land. Alexander Hamilton then altered that terminology to due process of law in the 1787 New York arrest provision. The Federal Framers then included due process of law among the pretrial requisites for initiating criminal prosecutions in the Fifth Amendment (rather than among the trial rights in the Sixth). In contrast, the Fourth Amendment simply banned issuance of too-loose warrants, but did not address warrantless intrusions.

Framing-era arrest standards and the Cokean understanding of due process were lost when nineteenth-century state courts relaxed arrest standards to bare probable cause, thereby drastically expanding governmental investigatory powers. The Supreme Court then reinvented search-and-seizure under the Fourth Amendment, and created the modern reasonableness standard, during the early twentieth century. Thus, the authentic history involves lost understandings and drastic doctrinal discontinuities.

Tsai on Reconsidering Gobitis: Lessons in Presidential Leadership

Reconsidering Gobitis: Lessons in Presidential Leadership, is a new paper by Robert L. Tsai, University of Oregon (& moving to American University). A principal source for the paper is archival records at the FDR Library. Much has been written about Gobitis, of course, but among Tsai's contributions, which go beyond the case itself, is to examine the Court and the executive branch together, rather than the Court in isolation. Here's the abstract:

In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah's Witnesses who refused to pay homage to the flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of terror visited upon Jehovah's Witnesses in the wake of Gobitis. Drawing upon previously unearthed archival material, this article for the first time attributes the dramatic upheaval in legal reason to the mechanics of linguistic transformation spurred by presidential initiative. A sophisticated strategy implemented by the executive branch altered the social terrain within which constitutional text was read, systematically eroded the picture of communal life rhetorically constructed by the High Court in Gobitis, and presented an alternative reading of the First Amendment in urgent and attractive fashion. Despite what many believed to be a deliberative moment, however, the Supreme Court incompletely memorialized the dialogic interaction between the branches of government. By copying the President's words without attribution, the Justices impoverished our appreciation of the constitutional system in action. Understanding the remarkable episode within this paradigm sheds light on a variety of enduring questions, from the necessary interconnections between judges and other social actors as they together build a constitutional vocabulary, to the post-war ascendancy of the First Amendment in the public mind, to the benefits and risks of presidential initiative as to rights.

Forbath on Constitutionalism and Social and Economic Rights

William E. Forbath, University of Texas, has a new article, Social and Economic Rights: A Brief Guide to the Constitution of Work and Livelihoods. It is forthcoming in WORKINGUSA: The Journal of Labor and Society (2008). Here's the abstract:

Constitutional democracy is impossible here, just as it is elsewhere, without some limits on social and economic deprivation. Mounting poverty and poverty wages, growing job insecurity, a renaissance of sweat shops, a lack of decent education, of access to health care, housing, and other basic social goods: millions of Americans thus afflicted lack more than money. They are at constant risk of physical and social debilitation. As a consequence, they can't participate on anything like a roughly equal footing in the world of work and opportunity or in the polity, where the terms of social and economic cooperation and competition are meant to be open to democratic scrutiny and revision. Equal liberty and the consent of the governed - the basic precepts of constitutional democracy - are a hoax in a system that allows such savage inequality as ours.

The rest of this short essay is divided into three parts. First and briefest, just a couple pages, is a plain-spoken philosophical explanation of why most Americans' reflective (now that I think about it) understanding of constitutional democracy demands social and economic rights. This seems like it might be useful, since the idea of fundamental rights to social goods rubs so sharply against the grain of our official legal and political culture today. Second is an historical account that shows that the idea is as rooted in American history and tradition as conservatives' laissez faire. It also shows how the tangled knot of race and class constrained efforts in the polity and courts to make good on the claims of social and economic citizenship during the twentieth century. And third are some suggestions about renewing and reinventing social and economic rights today.

Romero on the Emergence of a Tri-Ethnic Jurisprudence at the End of the 20th Century

Tom Romero II, Hamline University School of Law, has posted a new article, ¿La Raza Latino?: Multiracial Ambivalence, Color Denial, and the Emergence of a Tri-Ethnic Jurisprudence at the End of the Twentieth Century. It appeared in the New Mexico Law Review. Here's the abstract:

This article is a recent legal history concerning the complicated, inconsistent, and dramatic transformation in the jurisprudential meaning and legal consequence of race, color and ethnic categories in the last decades of the 20th century. Linking school desegregation, bilingual education, and affirmative action jurisprudence to the dramatic growth of the nation's Latina/o community in the second half of the 20th century, the article documents the reasons behind the inability of American law to understand conceptually the idea of a Latino race.

In particular, the article argues that three United States Supreme Court equality of education cases - Keyes v. School District No. 1 (1973), Lau v. San Francisco Unified School District (1974) and University of California v. Bakke (1978) - formed the foundation of a tri-ethnic jurisprudence. As the issues in each case came to be formulated in the lower courts as a direct result of the presence of Latino and other students of color in the litigation, the article argues that the emerging tri-ethnic jurisprudence minimized or completely obscured the importance of color privilege to the legal analysis. For Latina/os, who historically had been legally racialized as other White and other Black, such a development provided an inconsistent and loosely coherent body of jurisprudence through which to assure equal rights. Ultimately, the article details how such cases reinforces the dichotomies of U.S. law (i.e., Black/White, minority/non-minority, English/non-English, American/non-American) without confronting the distinct racialization of Latina/os in American culture and without acknowledging the emergence of a more complicated color line in a multiracial nation.

Olivas on Hernandez v. Texas, a Litigation History

Michael A. Olivas, University of Houston Law Center, has posted a new essay, Hernandez v. Texas, a Litigation History. It appeared in Colored Men and Hombres Aqui, Hernandez v. Texas and the Emergence of Mexican American Lawyering, Michael A. Olivas, ed. (2006). Here's the abstract:

An important case was decided by a unanimous United State Supreme Court in May, 1954, in an opinion written by Chief Justice Warren. It invoked race, which had been employed by the State in a way to marginalize a discrete racial group, and formulated Equal Protection. The term "Colored Men" figured in it. Brown v. Board of Education? No¿the case was Hernandez v. Texas, written at the same time as Brown, by the same Court, and was published in the 1954 Supreme Court Reports just before Brown. This criminal law companion to Brown involved all white juries in Mexican-Jim Crow Texas, and has been all-but-forgotten in the bright light accorded Brown. But its anti-subordination language, small town sociology, and bathroom signage (the men's room sign, invoked by Justice Warren, read "Colored Men" and "Hombres Aqui" (Men Here). The case was also the first case argued by Mexican American lawyers before the Supreme Court. This study draws upon previously-unexamined archival materials and newspaper accounts, as well as information from the lawyers who tried the 1954 case.

Lash on Barnett on Lash on the 9th Amentment

Kurt T. Lash, Loyola Law School Los Angeles, has posted a new essay, Federalism, Freedom, and the Founders' View of Retained Rights. The essay is a companion to Lash's article A Textual-Historical Theory of the Ninth Amendment, and responds to a critique of the article by Randy Barnett, Kurt Lash's Majoritarian Difficulty. Lash's and Barnett's pieces will appear in the Stanford Law Review. Here's the abstract:

In A Textual-Historical Theory of the Ninth Amendment, 60 Stanford Law Review (forthcoming 2008), I explain how some of the most common theories of the Ninth Amendment either have nothing to do with the actual text of the Amendment or place the text in conflict with similar terms in the Tenth Amendment. Focusing on the actual words of the Amendment, I argue that the text of the Ninth point towards a federalist rule of construction in which the people's retained rights are necessarily left to the control of the collective people in the several states. I also explain how this reading fits with the available historical evidence and reconciles the people of the Ninth with the people of the Tenth Amendment. At the invitation of the Stanford Law Review, Ninth Amendment scholar Professor Randy Barnett has now written a response to this piece. In his essay, Kurt Lash's Majoritarian Difficulty, Professor Barnett characterizes my approach to the Ninth Amendment as majoritarian and argues that the Ninth was intended to reflect the distinctly antimajoritarian views of Madison and the First Congress. Instead of protecting the collective rights of the people in the states, Barnett maintains that Ninth Amendment protects only individual rights and cites as critical support the opposition views of the antifederalist Virginia Senate and the majority opinion in Chisholm v. Georgia.

In this brief reply essay, I clarify the distinction between individual, majoritarian and collective rights and explain how all were likely among the rights retained by the people under the Ninth Amendment. This federalist (as opposed to majoritarian) reading of the Ninth Amendment was expressly embraced by participants in the drafting and ratification of the Ninth Amendment, in particular James Madison, the drafter of the Amendment. In a major speech which he delivered while the Ninth Amendment remained pending in the states (a speech which Barnett does not mention), Madison explained how the Ninth Amendment was drafted in response to concerns emanating from the state ratifying conventions and that both the Ninth and Tenth Amendments were intended to preserve the retained powers and rights of the people in the states. Although the Chisholm majority presented a distinctly non-federalist vision of the people, had this been the common reading of the Ninth and Tenth in 1791, this would have ensured the defeat of the Bill of Rights - an outcome Virginia antifederalists desperately but unsuccessfully sought to achieve.

Rosen reviews Anthony Lewis, Freedom for the Thought that We Hate

FREEDOM FOR THE THOUGHT THAT WE HATE: A Biography of the First Amendment by Anthony Lewis (Basic Books) is reviewed in the New York Times by Jeffrey Rosen, George Washington Law School. Rosen writes, in part:

In his new book, “Freedom for the Thought That We Hate,” Lewis offers a...heroic account of how courageous judges in the 20th century created the modern First Amendment by prohibiting the government from banning offensive speech, except to prevent a threat of serious and imminent harm. “Many of the great advances in the quality — the decency — of American society were initiated by judges,” he writes. “The truth is that bold judicial decisions have made the country what it is.”

It’s easy to see why Lewis came to view judges as brave protectors of First Amendment rights: he covered the Supreme Court during the Warren era, when the modern First Amendment took shape, and he recalls Justice Felix Frankfurter’s showing him an eloquent 1929 dissent by Justice Oliver Wendell Holmes Jr. that defended the free speech rights of Quakers and pacifists and that inspired the title of this book. “When I came to the final paragraph,” Lewis says, “I felt the hair rise on the back of my neck.” But this is not a comprehensive narrative history of the development of the modern First Amendment; Lewis already provided that in his 1991 book, “Make No Law.” Instead, it is a passionate if discursive essay that ranges across a variety of free speech controversies — from sedition and obscenity to hate speech and secret wiretapping. This may seem like winner’s history, but the victories Lewis celebrates remain controversial. There are persistent voices, in Europe and America, that continue to argue for suppressing hate speech on university campuses, for example; Lewis rightly applauds the fact that American courts have rejected their arguments.

All of Lewis’s proposals reflect his faith that the judiciary is well equipped to balance the value of free speech against other values (like privacy and national security) in a thoughtful and independent way. But is he too optimistic? There is a competing, decidedly less heroic account of First Amendment history, which holds that judges have always tended to reflect the public’s prejudices about unpopular speakers, and that most advances for free speech have been initiated not by judges, as Lewis argues, but by political activism. It was abolitionists, in the 1830s, who first argued that Southern states shouldn’t be able to ban antislavery tracts because of the remote possibility they might provoke an insurrection; the Supreme Court took another 130 years to enshrine the underlying principle into law. Similarly, the court began to protect political dissidents like Communists and Ku Klux Klan members in the late 1960s, not in the 1920s and 1950s — that is, only when they were no longer perceived as a serious threat by national majorities.

Lewis’s faith in judges also presumes that free speech controversies will take the same form in the future as they have in the past — namely, as legal battles between an overreaching government and the institutional press, with the judiciary as a neutral arbiter. But is this really likely? The rise of new technologies suggests that the free speech battles of the future may instead pit telecom corporations against private speakers, leaving judges on the sidelines....

In the 21st century, the heroic First Amendment tradition may seem like a noble vision from a distant era, in which heroes and villains were easier to identify. But that doesn’t diminish the inspiring achievements of First Amendment heroism. Conservative as well as liberal judges now agree that even speech we hate must be protected, and that is one of the glories of the American constitutional tradition. Anthony Lewis is right to celebrate it.

The rest is here.

My New Book!

Not out yet, but you can pre-order at Amazon: Exporting American Dreams: Thurgood Marshall's African Journey. (And I will do my best to get the overly triumphalist press book description rewritten before it is in print....)

Desai on Wiretapping before the Wires: The Post Office and the Birth of Communications Privacy

Anuj C. Desai, University of Wisconsin, has posted a new article, Wiretapping before the Wires: The Post Office and the Birth of Communications Privacy. The article appeared in the Stanford Law Review. Here's the abstract:

In August 2006, a federal district court held that the Terrorist Surveillance Program violates the Fourth Amendment. Scholars have debated the legality and constitutionality of the program extensively since the New York Times first publicized its existence in December 2005. In this Article, I look beneath the surface of that raging debate to one of the premises underlying the court's conclusion, that the Fourth Amendment protects the confidentiality of communications. I explore the origins of the notion that the Fourth Amendment protects communications privacy. Most scholars and commentators look to Justice Brandeis's famous dissent in the 1928 case Olmstead v. United States. In this Article, I contend that we must go further back, back to surveillance of the first communications network in the United States, the post office. I explain the history of postal surveillance and show that the principle of communications privacy derives not from the Fourth Amendment or even from the Constitution at all. Rather, it comes from early postal policymakers who put that principle into postal ordinances and statutes in the late eighteenth century. Over time, the principle of communications privacy became embedded into the postal network by both law and custom. It was only then that the Court incorporated it into the Fourth Amendment in the 1878 case Ex parte Jackson, which in turn served as one of the bases of Justice Brandeis's Olmstead dissent. So, if today we see the principle of communications privacy as fundamental to the Fourth Amendment, we have postal policymakers to thank, for it was through the post office, not the Constitution or the Bill of Rights, that early Americans first established that principle. I conclude the Article with thoughts on the implications of this story for constitutional theory and, in particular, the relationship between the courts, the legislature, and institutions in the creation of constitutional law doctrine.

Image credit: Linn Grove, IA Post Office, circa early 1900s

Garrow reviews Gilmore, Defying Dixie: The Radical Roots of Civil Rights, 1919-1950

DEFYING DIXIE: The Radical Roots of Civil Rights, 1919-1950 by Glenda Elizabeth Gilmore (W. W. Norton & Company) is reviewed for the New York Times by David Garrow, Cambridge University. Garrow writes, in part:

“In the three decades that followed World War I, black Southerners and their allies relentlessly battled Jim Crow,” Glenda Elizabeth Gilmore writes at the outset of this rich but sprawling book. Ms. Gilmore, a professor of history at Yale, wants her “collective biography of activist black and white Southerners” from that era to illuminate how resistance to the South’s elaborate system of racial segregation, often nicknamed Jim Crow after a 19th-century minstrel song, long predated the onset of traditionally celebrated civil-rights initiatives in 1954-55.

Ms. Gilmore begins her story at the end of World War I, when “the virulence of discrimination during the war and the racial violence afterward transformed African-Americans’ political consciousness” and stimulated a new generation of activists....The first focal figure in “Defying Dixie” is Lovett Fort-Whiteman, a widely traveled Texan who in 1919 became “the first American-born black Communist.” Ms. Gilmore devotes considerable attention to such early Soviet true-believers, few though they were, for “in the 1920s and 1930s the Communists alone argued for complete equality between the races,” she notes. “Their racial ideal eventually became America’s ideal.”...

Ms. Gilmore rightly stresses that even as late as the 1940s, mainstream interracial groups like the Southern Regional Council “did not endorse desegregation.” Her indictment of “the bankruptcy of moderate organizations” and moderate white Southern academics is powerful and profound....

By far the most compelling portions of “Defying Dixie” tell the life story of Pauli Murray, a black lesbian feminist whose lifelong activism began with an unsuccessful attempt to desegregate the University of North Carolina, Chapel Hill, in early 1939 and culminated with her ordination as an Episcopal priest in 1977. Ms. Murray’s application to North Carolina’s graduate school came shortly after lawyers for the National Association for the Advancement of Colored People had won its first higher-education desegregation case in the United States Supreme Court. But Ms. Gilmore reveals how the N.A.A.C.P. counsel Thurgood Marshall was unwilling to pursue Ms. Murray’s challenge because of his disquiet over both her sexuality and her past membership in a communist splinter group that opposed the Communist Party itself.

[Note: Legal historians have stressed as well a problem with the facts of the case. The most important case on point, Missouri ex rel Gaines v. Canada (1935), had involved a citizen of Missouri suing for entrance to the University of Missouri. Murray was a New Yorker suing for entrance to the University of North Carolina. According to Mark Tushnet, Marshall thought that "the state might get around Gaines by arguing that it had no constitutional duty to provide education to nonresidents." Murray had an argument that UNC should treat all non-residents equally, but Marshall "thought that this was an extension of Gaines that the NAACP should not push yet."] Garrow continues:

Eleven years went by before Marshall won a pair of Supreme Court cases that mirrored Ms. Murray’s complaint, and Ms. Gilmore muses about how costly that delay was. “Had the N.A.A.C.P. been able to win desegregation decisions in World War II America, white Southerners would have had a more difficult time mounting massive resistance in the midst of a war against intolerance,” when claims of black inferiority “seemed to have more in common with the Führer than with the Founders.”

Instead the legal confrontation took place in the 1950s, when the Southern allegation "that integrationists were Communists” carried far greater resonance than it would have a decade earlier, and when “the power of the left to implement desegregation” - as Ms. Gilmore imagines it — no longer existed.

Ms. Gilmore’s speculation implausibly presumes that the Supreme Court would have invalidated school segregation earlier than it did. She rightly emphasizes, though, how the surprising Nazi-Soviet Pact of August 1939 destroyed the left-liberal Popular Front and upended the Southern left’s argument that Jim Crow represented American fascism. Instead segregationists could use American Communists’ subservience to Moscow to tar their liberal and socialist allies as fellow travelers. When evidence of Communist complicity in Soviet espionage began to emerge after the war’s end, it was leftists, not white supremacists, who could now be painted as downright un-American.

The rest is here.

Update: More on Gilmore, with a review by Raymond Arsenault in the Washington Post. Hat tip.

Rose, Retrospective on Justice and the Poor in the 20th Century United States

Henry Rose, Loyola University of Chicago School of Law, has posted an article, Retrospective on Justice and the Poor in the United States in the Twentieth Century. It appeared in the Loyola University Chicago Law Journal. Here's the abstract:

The purpose of this essay is to review the history of legal developments in the twentieth century that affected America's poor. The twentieth century was a period of both positive developments and unfulfilled promise in the legal rights of the poor. Although progress had been made, at the end of the century there remained obstacles to fulfilling America's commitment to equal justice under law. Section I details the important social programs enacted by Congress in the last century, and comments on their varying degrees of success. Section II delineates some of the important jurisprudential developments affecting the poor in the same period. Section III notes the increasing disparity between the rich and the poor in this country, highlighting the need for increased scrutiny on the programs and law detailed in the first two sections.