Weekend Roundup

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  Robert B. Stevens (UCSC)
  

  Robert Bocking Stevens, the author of the indispensable Law Schools: Legal Education in America: 1850-1960 (1983), has died.  The UC Santa Cruz notice is here.
  

• The Federal Judicial Center has updated its Demography of Article III Judges, 1789-2020.
  

• Over at Balkinization, a symposium is underway on former LHB Guest Blogger Mary Ziegler's  Abortion and the Law in America: Roe v. Wade to the Present (2020), including Mark Graber’s contribution, Constitutional Trench Warfare over Abortion. 
  

• On February 23, the Law Library of Congress hosts the webinar Evolution of Presidential Powers under the Turkish Constitutional System, with Kayahan Cantekin, the Law Library’s foreign law specialist for Turkic-speaking jurisdictions.
  

• Filippo Maria Sposini, PhD candidate, University of Toronto and Roy McMurtry Fellow, Osgoode Society, has published The rise of psychological physicians: The certification of insanity and the teaching of medical psychology, International Journal of Law and Psychiatry (2021).  It argues that by giving doctors the authority to report “facts of insanity,” the 1853 Lunatic Asylums Act created the need for “psychological physicians” capable of certifying lunacy and sped the development of psychiatry as a medical specialty.
  

• The OAH has extended its CFP deadline for its annual meeting until February 17, 2021.
  

• ICYMI: "My Name is Pauli Murray" premieres at the Sundance Film Festival (Star Tribune). What Would U.S. Grant Do (about White Supremacy)? (Politico).  A history of unusual impeachments (Governing).  Amend, the Netflix documentary on the 14th Amendment (Philly Voice).  Reconstruction: A Timeline (History).

• Update: In the LRB, read Erin Maglaque's essay on John Christopoulous' book on abortion in early modern Italy.

• Update: The American Institute of Sri Lankan Studies is hosting an online seminar for the next six weeks. "New Research in Sri Lankan History" includes several sessions on legal history. Register here.

• Update: The Middle Temple Library Blog has posted this handy list of online ecclesiastical law resources. 

• Update: The Einstein Foundation welcomes nominations from the humanities and social sciences for its Award for Promoting Quality in Research (due: March 31, 2021).

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

Bickers on the Legal Tender Cases

John M. Bickers, Northern Kentucky University Salmon P. Chase College of Law, has posted Greenbacks, Consent, and Unwritten Amendments:

“We the people,” the Constitution begins, setting forth the core republican principle that the American government would henceforward be one based upon the consent of the governed. Yet after that announcement the Constitution set forth written rules of varied levels of specificity that clearly mean to bind future generations of those same people. One set of those rules establishes a complicated set of options for amendment: the authors at the end of the eighteenth century made it quite difficult for anything less than a future double supermajority to change their work.

Yet over the centuries there have been countless changes to the society governed by this formative document. The originalist judicial philosophy would prevent such changes from occurring unless they were at least countenanced by the original public understanding of the Constitution among those who made (that is to say, ratified) the document. Other philosophies argue that the current people have a right to remake the Constitution outside of the formal amendment process, an idea resisted fiercely by the originalists. Some thinkers have speculated about the possibility of discovering, at two centuries of remove, an unusual but consistently held view of the founding generation: would the discovery invalidate experiments the United States had adopted in the interim?

No such speculation truly needs to be engaged, as the preeminent example of this puzzle is offered on sheets of paper found in almost every wallet. Each sample of U.S. paper money contains the confident, all-capital phrase “THIS NOTE IS LEGAL TENDER FOR ALL DEBTS, PUBLIC AND PRIVATE.” The population accepts this assertion. But it has not been ever thus.

Just a century and a half ago, a challenge to the Civil War issuance of paper money as legal tender made its way to the U.S. Supreme Court. There, Chief Justice Salmon P. Chase authored an opinion denouncing this legal innovation that had occurred under the watchful eye of Treasury Secretary Salmon P. Chase. Although some legal scholars have argued that he was wrong, most of the legal world has accepted Chase’s analysis: the Constitution prohibited the adoption of paper money as legal tender by text, by the understanding of those who wrote the text, and by the original meaning ascribed to the text by the portion of the public that ratified it.

Chase’s decision sent shock waves through an American economy that had quickly become reliant on this new device. There is evidence that the search for new Supreme Court justices focused to some degree on finding people who would reject Chase’s originalism in favor of letting We the People decide the issue. When two newly appointed justices joined the Court and reconsidered the matter just a year after the rejection by Chase, they embraced paper money. The embrace of paper money as legal tender remains to this day.

The triumph of that second of the Legal Tender Cases was so complete that Americans today are frequently confident that the use of the phrase “coin money” in the constitutional powers of Congress is meant metaphorically. Chase’s solid demonstration that it was nothing of the kind has faded from the consciousness of all but a few specialists.

What does this unwritten amendment of Congress’s powers mean, then, for the role of consent of the governed? For if the Constitution must be limited to its original public meaning, the United States should immediately revert to an economy suitable for the first years of the Republic, when the decision whether to accept paper in payment of debt was the choice of the individual, and the government could only compel acceptance of coins. Yet that, surely, is not an idea to which more than a bare handful of contemporary Americans would consent.

If “consent of the governed” means consent by those current Americans, they evince it by continue to live in the America of their understanding. They demonstrate such consent to unwritten amendments every time they offer or accept cash believing that the claim made on the face of the bill is true.

–Dan Ernst.

Quigley and friends on the Civil War and Citizenship

Edited by Paul D. Quigley, Virginia Tech, The Civil War and the Transformation of American Citizenship came out with LSU Press in 2018. From the publisher:

The meanings and practices of American citizenship were as contested during the Civil War era as they are today. By examining a variety of perspectives—from prominent lawmakers in Washington, D.C., to enslaved women, from black firemen in southern cities to Confederate émigrés in Latin America—The Civil War and the Transformation of American Citizenship offers a wide-ranging exploration of citizenship’s metamorphoses amid the extended crises of war and emancipation.

Americans in the antebellum era considered citizenship, at its most basic level, as a legal status acquired through birth or naturalization, and one that offered certain rights in exchange for specific obligations. Yet throughout the Civil War period, the boundaries and consequences of what it meant to be a citizen remained in flux. At the beginning of the war, Confederates relinquished their status as U.S. citizens, only to be mostly reabsorbed as full American citizens in its aftermath. The Reconstruction years also saw African American men acquire—at least in theory—the core rights of citizenship. As these changes swept across the nation, Americans debated the parameters of citizenship, the possibility of adopting or rejecting citizenship at will, and the relative importance of political privileges, economic opportunity, and cultural belonging. Ongoing inequities between races and genders, over the course of the Civil War and in the years that followed, further shaped these contentious debates.

The Civil War and the Transformation of American Citizenship reveals how war, Emancipation, and Reconstruction forced the country to rethink the concept of citizenship not only in legal and constitutional terms but also within the context of the lives of everyday Americans, from imprisoned Confederates to former slaves.

The Table of Contents is accessible on Google Books here.

Further information is available here.

--Mitra Sharafi

Leiber's Lost Treatise on Martial Law

To Save the Country: A Lost Treatise on Martial Law, written by Francis Lieber and G. Norman Lieber and edited and with an introduction by Will Smiley and John Fabian Witt, is out from the Yale Univbersity Press.  Francis Lieber (1798–1872) was professor at Columbia College who advised Abraham Lincoln on the law of war. G. Norman Lieber (1837–1923), Francis’s son, taught law at West Point. Will Smiley is an assistant professor of humanities at the University of New Hampshire. John Fabian Witt is the Allen H. Duffy Class of 1960 Professor of Law at Yale Law School and the Head of Yale’s Davenport College.

The last work of Abraham Lincoln’s law of war expert Francis Lieber was long considered lost—until Will Smiley and John Fabian Witt discovered it in the National Archives. Lieber’s manuscript on emergency powers and martial law addresses important contemporary debates in law and political philosophy and stands as a significant historical discovery.

As a key legal advisor to the Lincoln White House, Columbia College professor Francis Lieber was one of the architects and defenders of Lincoln’s most famous uses of emergency powers during the Civil War. Lieber’s work laid the foundation for rules now accepted worldwide. In the years after the war, Lieber and his son turned their attention to the question of emergency powers. The Liebers’ treatise addresses a vital question, as prominent since 9/11 as it was in Lieber’s lifetime: how much power should the government have in a crisis? The Liebers present a theory that aims to preserve legal restraint, while giving the executive necessary freedom of action.

Smiley and Witt have written a lucid introduction that explains how this manuscript is a key discovery in two ways: both as a historical document and as an important contribution to the current debate over emergency powers in constitutional democracies.

Here are some endorsements:

 “When arguments for a legally unrestrained executive are again in fashion, this retrieval of Lincoln’s lawyer’s theory of appropriate legal restraint during wartime emergency could not be more timely.”—David Dyzenhaus, University of Toronto

“Smiley and Witt have unearthed a lost treasure. As we debate how our constitutional democracy handles great stress, this work helps us understand how the system has survived so far.”—Matthew C. Waxman, Columbia University

“Through their extraordinary discovery of Francis Lieber’s unpublished notes, Smiley and Witt not only provide a crucial new primary source that contextualizes Lieber’s role in the development of laws of war but also, amazingly enough, a fruitful way to reconsider the old, vital question of what constraints law can offer in times of war. A book every historian of the Civil War and every scholar of laws of warfare should rush to read.”—Gregory P. Downs, author of After Appomattox: Military Occupation and the Ends of War

“The manuscripts that Smiley and Witt have recovered should be required reading for anyone who cares about the operation of the Constitution in wartime and more generally about what legal limits should—or should not—constrain the government in confronting emergencies.”—Amanda L. Tyler, University of California, Berkeley School of Law

--Dan Ernst