Sunday Book Roundup

Over at HNN there is a review of The Limits of Optimism: Thomas Jefferson's Dualistic Enlightenment by Maurizio Valsania (UVA Press).

"Valsania’s final chapter underscores Jefferson’s Darwinian moment—a “demythologizing of imagination.” Jefferson came to realize that humans—evidence comes with his letters to John Colvin (20 Sept. 1810) and John Holmes (22 Apr. 1820)—are “creatures of the present and are committed to the brutal fact of their animal survival. In a word, he admitted the brutality of expediency.” Thus, Jefferson tried to live consistently with philosophical ideals, but found the principle of self-survival to be axial, and found reason, right, law, and morality to be ancillary (149–51 and 157)."

From New Books in History is an interview with Suzanna Reiss in which she discusses We Sell Drugs: The Alchemy of US Empire (University of California Press).

Elizabeth Cobbs Hoffman's American Umpire (Harvard University Press) is reviewed on H-Net.

"In American Umpire, Elizabeth Cobbs Hoffman offers a survey-style analysis of the history of both the United States and the country’s foreign policies towards the outside world. Within the work, Cobbs Hoffman presents a revisionist approach to the narratives that were discussed by the cultural and transnational historians who emerged during the early 1990s. In an attempt to shift the conversation away from the discussion of US imperial history, Cobbs Hoffman counters the anti-exceptional narratives offered by Kaplan, Kramer, Foster, Go, as well as a multitude of other academics, by arguing that the American Empire only existed from 1898 to 1946 and that the United States was “the pivot” that led the shift away from empires towards the existence of modern nation-states (pp. 13, 3)."

History Today has a review of Whistle Stop: How 31,000 Miles of Train Travel, 352 Speeches, and a Little Midwest Gumption Saved the Presidency Saved the Presidency of Harry Truman by Philip White (ForeEdge).

Also up on H-Net is a review of Lynchings in Kansas, 1850s-1932 by Harriet C. Frazier (McFarland).

"In addition, Lynchings in Kansas tends to accept the viewpoint of the mob, assuming the guilt of the lynched person, unless otherwise noted (for an especially troubling example of this, see the discussion of the white-on-black lynching of Hugh Henry in Larned in 1892, pp. 120-121). Furthermore, with the exception of cursory references to the race of the victims, the book spends remarkably little time grappling with the racist implications of the state’s white-on-black lynchings. Indeed, it seems to affirm implicitly Yost’s highly questionable declaration that “the negroes form such a small percentage of the total lynched, a ratio of one negro to four and one-half whites, that the race problem cannot be considered an especially important factor in the state.”"

Eileen Boris reviews Lisa Baldez's Defying Convention: U.S. Resistance to the UN Treaty on Women's Rights (Cambridge University Press).

"This book is a hybrid: part careful history, part policy brief. Enthusiastic advocacy for the convention does not kept Baldez from weighing opposing political arguments and divergent scholarly interpretations in a balanced manner. Her eight chapters divide into three sections: the origins of CEDAW, the evolution of its monitoring committee, and the politics of US consideration. “CEDAW matters” (p. 152), she convincingly asserts, because it has served as a touchstone for foreign policy as well as for national debates over abortion, motherhood, violence against women, and equality between the sexes. Based on a wide array of sources—including government documents (such as printed congressional hearings and State Department memos), legal cases, oral interviews, UN proceedings, memoirs, and newspaper stories—Defying Convention provides the fullest account we have of the domestic and geopolitical forces that have shaped US engagement with CEDAW."

Sunday Book Roundup

Jim Grimsley's How I Shed My Skin: Unlearning the Racist Lessons of a Southern Childhood (Algonquin) is reviewed in the Washington Post.

History Today has a review of Presidential Faith and Foreign Policy: Jimmy Carter the Disciple and Ronald Reagan the Alchemist by William Steding (Palsgrave Macmillan).

"Steding is surely right to emphasise the importance of understanding the mindset a president brings to the momentous foreign policy decisions that are unavoidable for the occupant of the White House. Traces of the book's origins in a doctoral thesis are evident, such as calling these mindsets 'cognetic narratives' or 'cognetics'. Such jargon aside, the author succeeds in illuminating the way the presidents looked at the world. He makes the valid point that even historians who are interested in the values and beliefs of leaders tend to pass lightly over their religious convictions – clearly a mistake with Jimmy Carter and, perhaps less obviously, with Ronald Reagan."

Over on H-Net is a review of Leslie Rosenthal's The River Pollution Dilemma in Victorian England: Nuisance Law versus Economic Efficiency (Ashgate).

"In this well-researched book, Leslie Rosenthal examines ten legal conflicts over river pollution, and shows how judges balanced the formal upholding of the law with the management of the nuisance. While the polluters were held liable for causing the nuisance, in none of the case studies was a town’s sewer outlets physically stopped by the courts. Instead, the court took on a supervisory role on the process of abating the nuisance by ordering injunctions, but not actually enforcing them until a certain date, thus allowing the towns the time to adjust their sewers’ outflows. An important theme of the book is that the existing nuisance law was ill-equipped as a protector of the environment, as complainants could be paid compensation or sewage could be diverted, which solved the legal case but did not actually address the pollution itself. In addition, the technological options for treating the sewage were limited at the time. As a result, Rosenthal argues, the cases in which the court induced a town to reduce the nuisance of its pollution should be considered a success “worthy of celebration” (p. 231)."

Also on H-Net is a review of Returns: Becoming Indigenous in the Twenty-First Century (Harvard University Press) by James Clifford.

And from New Books in American Studies is an interview with author Michael G. Miller about his book, Subsidizing Democracy: How Public Funding Changes Elections and How it Can Work in the Future (Cornell University Press).

New Release: Field and Syrett, eds., "Age in America: The Colonial Era to the Present"

New from New York University Press: Age in America: The Colonial Era to the Present, edited by Corinne T. Field (University of Virginia) and Nicholas L. Syrett (University of Northern California). Here's a description from the Press:

Eighteen.  Twenty-one. Sixty-five.  In America today, we recognize these numbers as key transitions in our lives—precise moments when our rights and opportunities change—when we become eligible to cast a vote, buy a drink, or enroll in Medicare.This volume brings together scholars of childhood, adulthood, and old age to explore how and why particular ages have come to define the rights and obligations of American citizens.  

 

Since the founding of the nation, Americans have relied on chronological age to determine matters as diverse as who can marry, work, be enslaved, drive a car, or qualify for a pension. Contributors to this volume explore what meanings people in the past ascribed to specific ages and whether or not earlier Americans believed the same things about particular ages as we do.  The means by which Americans imposed chronological boundaries upon the variable process of growing up and growing old offers a paradigmatic example of how people construct cultural meaning and social hierarchy from embodied experience.  Further, chronological age always intersects with other socially constructed categories such as gender, race, and sexuality.  Ranging from the seventeenth century to the present, taking up a variety of distinct subcultures—from frontier children and antebellum slaves to twentieth-century Latinas—Age in America makes a powerful case that age has always been a key index of citizenship.

The TOC is available here, the Introduction, here.

Weekend Roundup

Jennifer Mnookin

• Congratulations to UCLA's Jennifer Mnookin, the latest legal historian to become dean of a law school! H/t: LK!

• Welcome to the blogosphere, Punishment and Society, "the official blog of the Law and Society Association's CRN 27 Punishment and Society."

• The Cumberland Law Review is seeking papers on the Voting Rights Act of 1965. (Hat tip: Faculty Lounge)

• Over at Balkinization, Bruce Ackerman (Yale Law School) previews the argument of his current book project, on the world-wide rise of constitutionalism during the twentieth century.

• On HNN: A report on the panel at the annual meeting of the American Association for the History of Medicine, “Reproductive Rights after Griswold: A Fifty Year Retrospective,” by Heather Munro Prescott, Central Connecticut State University. 

• Mapping Segregation in Washington DC: A presentation and online launch on June 17 in DC’s Martin Luther King Library.

• From our friends at the Canadian Legal History Blog: a few panels of interest from this week's meeting of the Canadian Law and Society Association.

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

Kousser on Voting Rights Disputes, 1957-2013

J. Morgan Kousser, California Institute of Technology, has posted Do the Facts of Voting Rights Support Chief Justice Roberts's Opinion in Shelby County? which is forthcoming in Transatlantica 1 (2015):

In June, 2013, a 5-4 majority of the U.S. Supreme Court brought to an abrupt and likely permanent end the most important provision of the most successful civil rights law in U.S. history. Initially passed in 1965, Section 5 of the Voting Rights Act required “covered jurisdictions,” at first in the Deep South and later extended to Texas, Arizona, Alaska, and certain counties and townships in other states, to “pre-clear” any changes in their election laws with the Justice Department or the District Court of the District of Columbia before putting them into effect. Laws that changed the political structure – for instance, redistricting laws, annexations, and shifts from district to “at-large” elections for local governments – were restricted, as well as provisions and practices that directly affected individuals’ rights to vote. While acknowledging the success of the law in greatly increasing the number of African-American and Latino elected officials, Chief Justice John Roberts contended in his majority opinion in Shelby County v. Holder that the problems of 2013 were much less grave than the “pervasive...flagrant...widespread...rampant” voting discrimination of 1965 and that the coverage formula was outmoded because “today’s statistics tell an entirely different story.”

Neither the Chief Justice nor any scholars or civil rights proponents or opponents have systematically examined the evidence on the entire pattern of proven voting rights violations over time and space. Was the Chief Justice correct in asserting that such violations no longer tracked the coverage scheme in Section 4 of the Act – that, as he put it, the relationship of the formula to problems of vote dilution was purely “fortuitous”? Had the number of violations diminished so much in the years leading up to the 2006 renewal of Section 5 that Congress should have ended preclearance altogether because discrimination had basically disappeared? If the number of voting rights lawsuits has diminished, why is that so?

Based on the largest database of voting rights “events” – successful lawsuits, Section 5 Justice Department objections and “more information requests,” and consent decrees or settlements out of court that led to pro-minority changes – ever compiled, this paper provides a unique overview of the history of U.S. voting rights from 1957, when the first U.S. civil rights law in 82 years passed, through 2013. It shows that the Chief Justice’s factual assertions were incorrect, that the coverage formula was still congruent with proven violations, and that to the extent that recorded violations had decreased, that was not because problems had ended, but because the Supreme Court had made it more difficult to win lawsuits.

Shugerman on the ICC and the Rise of Modern Campaign Finance

Jed Handelsman Shugerman, Fordham Law School, has posted The Dependent Origins of Independent Agencies: The Interstate Commerce Commission and the Rise of Modern Campaign Finance and Capture.  Here is the abstract:    

Independent regulatory agencies are some of the most powerful institutions in the United States, and we think of them today as designed to be insulated from political control. This Article shows that their origins were the opposite: this model first emerged in the late nineteenth century because it offered more political control.

The modern executive’s design of unitary presidential control over most offices, along side “independent” regulatory agencies, took shape in the winter of 1886-1887. Congress repealed the Tenure of Office Act, giving the President the unchecked power to dismiss principal officers, and ending the Senate’s power to protect those officers. Shortly afterward, Congress created the Interstate Commerce Commission, the first model for the modern independent agency. These two statutes are a basic foundation for the modern executive branch: the unitary executive’s power over most offices, alongside independence regulatory commissions that are sometimes called a “fourth branch of government.”

This structural change was triggered by a sudden and significant transformation in American campaign finance. In the nineteenth century, parties relied on “assessments,” officeholders paying a percentage of their salary as a kickback to their party. Due to the federal prohibition of patronage “assessments” in 1876 and 1883, the parties were forced to adopt our more recognizable modern system of large special interest campaign contributions. The Senate had less incentive to fight for its power over federal offices and assessment money, and it suddenly needed to increase its access to railroad money. The Interstate Commerce Commission was the Senate’s means of attracting that money. The existing scholarship on the Interstate Commerce Commission generally contends that Congress was “shifting responsibility,” decreasing its own power so that it could punt difficult issues and delegate them to a new commission. To the contrary, this Article shows that the Senate and the President were seizing power, not punting away thorny questions. The ICC was a rejection of a far more independent enforcement model (private civil litigation in federal or state courts) towards a model of shared political accountability model (a commission nominated by the President and confirmed by the Senate for six-year terms. This story shows how sudden changes in campaign finance triggered dramatic changes in constitutional design, and set the foundation for the modern executive branch.

Sunday Book Roundup

H-Net adds a review this week of Gail Radford's The Rise of the Public Authority: Statebuilding and Economic Development in Twentieth-Century America (University of Chicago Press).

"Among the many challenges faced by historians of the modern United States is finding a way to decipher and depict the labyrinth of government. The task proves tangled enough when dealing with the federal, state, and local layers, and all their executive, legislative, and judicial divisions. But the complexity grows exponentially when one builds in the myriad boards, commissions, agencies, and districts to which executive and legislative bodies have delegated responsibilities. It is a relief, then, to see a scholar like Gail Radford tackle the public authority, a particularly sizeable but woefully understudied branch of modern governance. The Rise of the Public Authority: Statebuilding and Economic Development in Twentieth-Century America provides a valuable overview of an intricate topic, explaining the growing role these institutions have played in the public provision of goods and services in the United States."

In the Los Angeles Review of Books, The Inspection House: An Impertinent Field Guide to Modern Surveillance by Emily Horne and Tim Maly (Coach House Books) is reviewed.

"This terrain is the English philosopher Jeremy Bentham’s panopticon (the prison he designed in the 1870s), as seen from the viewpoint of Michel Foucault. The authors use Foucault’s Discipline and Punish: The Birth of the Prison as a gateway to discussion of what they call “our strange present condition,” meaning our “disciplinary” society and its enforcement through the widespread practice of surveillance by governments, corporations, and individuals."

Salon has published an excerpt from Jason Sokol's All Eyes Are Upon Us: Race and Politics from Boston to Brooklyn (Basic).You can hear an interview with the author on New Books in American Studies.

The New Books series has also conducted an interview with Jothie Rajah discussing her book, Authoritarian Rule of Law: Legislation, Discourse, and Legitimacy in Singapore (Cambridge University Press).

Additionally, New Books in History has posted a new interview with Daniel O. Prosterman regarding his new book, Defining Democracy: Electoral Reform and the Struggle for Power in New York City (Oxford University Press).

Weekend Roundup

• “A Woman Had a Place, and It Was Not Out Practicing Law”: Texas Monthly interviews Dusty Burke, a partner at Vinson & Elkins, "about graduating from law school during an era when women were not expected to use their degrees."(Hat tip: Sara Mayeaux)

• H-Law wants to hear from you! If you subscribe to the H-Law, please take a minute to respond to this brief survey.

• On accessing Law Library of Congress Reading Room Materials during its renovation. (Hat tip: Mary Dudziak.)

• Charles Zelden on closed primaries in the Orlando Sentinel.

• Seth Barrett Tillman, A Critique of Public International Law: Letter from Éamon De Valera to the Heads of Government of the Major Allied Powers-April 3, 1945 (2014)

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

Weekend Roundup

• .Yale Law's John Witt is delivering Two Humanitarianisms: A Constitution Day Lecture at Boston College on September 17 in a session jointly sponsored by BC's Clough Center for the Study of Constitutional Democracy and Legal History Roundtable.

• Via H-Law: "The Common Law Epitomiz'd: Anthony Taussig's Law Books" is the latest exhibit from the Yale Law Library's Rare Book collection. It showcases the Law Library's acquisitions from the greatest private collection of rare English law books ever assembled: the collection of Anthony Taussig."

• More on the Disqualification Clause: Brian C. Kalt, The Application of the Disqualification Clause to Congress: A Response to Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify, forthcoming in a symposium with Peter Hoffer, Buckner Melton, Jr., and Seth Barrett Tillman) in volume 33 of the Quinnipiac Law Review.  Tillman's contribution is Originalism & The Scope of the Constitution’s Disqualification Clause.

• Sarah Abrevaya Stein, UCLA, announces the publication of her book, Saharan Jews and the Fate of French Algeria (University of Chicago Press, 2014).  It asks “why the Jews of Algeria’s south were marginalized by French authorities, how they negotiated the sometimes brutal results, and what the reverberations have been in the postcolonial era.”

• We noticed David Garrow's contribution to a symposium on Roe v. Wade in the Washington & Lee Law Review when he posted it on SSRN.  The issue is now available on-line and ungated.  It includes Beyond Backlash: Legal History, Polarization, and Roe v. Wade, by Mary Ziegler, Florida State Law.
  

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

New Release: Mutch, "Buying the Vote: A History of Campaign Finance Reform"

New from Oxford University Press: Buying the Vote: A History of Campaign Finance Reform, by Robert E. Mutch (independent scholar). Here's a description from the Press:

Are corporations citizens? Is political inequality a necessary aspect of a democracy or something that must be stamped out? These are the questions that have been at the heart of the debate surrounding campaign finance reform for nearly half a century. But as Robert E. Mutch demonstrates in this fascinating book, these were not always controversial matters.

The tenets that corporations do not count as citizens, and that self-government functions best by reducing political inequality, were commonly heldup [sic] until the early years of the twentieth century, when Congress recognized the strength of these principles by prohibiting corporations from making campaign contributions, passing a disclosure law, and setting limits on campaign expenditures. But conservative opposition began to appear in the 1970s. Well represented on the Supreme Court, opponents of campaign finance reform won decisions granting First Amendment rights to corporations, and declaring the goal of reducing political inequality to be unconstitutional.

Buying the Vote analyzes the rise and decline of campaign finance reform by tracking the evolution of both the ways in which presidential campaigns have been funded since the late nineteenth century. Through close examinations of major Supreme Court decisions, Mutch shows how the Court has fashioned a new and profoundly inegalitarian definition of American democracy. Drawing on rarely studied archival materials on presidential campaign finance funds, Buying the Vote is an illuminating look at politics, money, and power in America.

More information is available here.

Tolson on Article I's Voter Qualifications Clause

Franita Tolson, Florida State University College of Law, has posted Protecting Political Participation Through the Voter Qualifications Clause of Article I, which is forthcoming in the Boston College Law Review.  Here is the abstract:

The Voter Qualifications Clause of Article I, Section 2 of the U.S. Constitution makes federal voting rights dependent upon participation in state elections. This Article argues that Article I incorporates both state constitutional law governing the right to vote and the democratic norms that existed within the states at the founding as the basis for determining the qualifications of federal electors. The democratic norms governing political participation can be traced to founding-era state constitutions that preserved the fundamental right of citizens to alter or abolish their governments at will, which was similar to the right of revolution exercised by the colonists against the British during the Revolutionary War. It is this understanding of the right to vote in federal elections, parasitic upon the robustly democratic notion of participation that existed at the state level and enshrined in state constitutional alter or abolish provisions, that the framers of the Constitution endorsed in the Voter Qualifications Clause of Article I. Contrary to this provision, the caselaw has divorced state and federal elections, resulting in excessive judicial deference to state regulations that govern the right to vote. As this Article shows, the Voter Qualifications Clause requires that states aggressively safeguard political participation in order to protect federal voting rights, which suggests that courts should apply a higher level of scrutiny in assessing the constitutionality of state election laws.

Belt on Disabled Veterans and the Right to Vote

Rabia Belt, a Michigan alumna and Ph.D. candidate, and a recent Law Research Fellow at Georgetown Law, has posted Ballots for Bullets? Disabled Veterans and the Right to Vote.  Here is the abstract:

Over 100,000 veterans lived in a government-funded home after the Civil War. Despite sacrificing their bodies for the preservation of the nation, these veterans lost the right to vote. This disfranchisement challenges the conventional wisdom that disabled veterans occupied a privileged position in society, politics, and law. Instead, their disability status trumped their military history, and they became part of a set of dependent, disabled people rendered placeless and vote-less by state law.

New Release: Smith, "On Democracy's Doorstep"

New from Hill & Wang: On Democracy's Doorstep: The Inside Story of How the Supreme Court Brought "One Person, One Vote" to the United States, by J. Douglas Smith (Director of Humanities, Colburn Music Conservatory). A description from the Press:

As chief justice of the U.S. Supreme Court, Earl Warren is most often remembered for landmark rulings in favor of desegregation and the rights of the accused. But Warren himself identified a lesser known group of cases—Baker v. Carr, Reynolds v. Sims, and their companions—as his most important work. J. Douglas Smith’s On Democracy’s Doorstep masterfully recounts the tumultuous and often overlooked events that established the principle of “one person, one vote” in the United States.

Before the Warren Court acted, American democracy was in poor order. As citizens migrated to urban areas, legislative boundaries remained the same, giving rural lawmakers from sparsely populated districts disproportionate political power—a power they often used on behalf of influential business interests. Smith shows how activists ranging from city boosters in Tennessee to the League of Women Voters worked to end malapportionment, incurring the wrath of chambers of commerce and southern segregationists as they did so. Despite a conspiracy of legislative inaction and a 1946 Supreme Court decision that instructed the judiciary not to enter the “political thicket,” advocates did not lose hope. As Smith shows, they skillfully used the Fourteenth Amendment’s Equal Protection Clause to argue for radical judicial intervention. Smith vividly depicts the unfolding drama as Attorney General Robert F. Kennedy pressed for change, Solicitor General Archibald Cox cautiously held back, young clerks pushed the justices toward ever-bolder reform, and the powerful Senate Minority Leader Everett Dirksen obsessively sought to reverse the judicial revolution that had upended state governments from California to Virginia.

Today, following the Court’s recent controversial decisions on voting rights and campaign finance, the battles described in On Democracy’s Doorstep have increasing relevance. With erudition and verve, Smith illuminates this neglected episode of American political history and confronts its profound consequences.

A few blurbs:

“Today, the principle of ‘one person, one vote’ is fundamental to democracy—but it wasn’t always so. On Democracy’s Doorstep tells how the Supreme Court decided to enter the political thicket and create the modern law of democracy, and how a proposed constitutional amendment almost reversed the Court. In today’s era of partisan gerrymandering and the overturning of the Voting Rights Act, this book could not be more timely and relevant.” —Noah Feldman
“On Democracy’s Doorstep is the compelling story of how a president and a Supreme Court rescued American democracy a half century ago—a vitally important book for our democracy’s new age of crisis.” —John Fabian Witt

More information is available here.

Weekend Roundup

Philip Girard

• Philip Girard (Osgoode Hall Law School), a recently named honorary fellow of the American Society for Legal History, is scheduled to give the plenary address at this year's annual meeting. (Hat tip: Canadian Legal History Blog)  

• Via In Custodia Legis: The Magna Carta is coming to the Library of Congress.

• Stop defending the humanities? Simon During makes the case. (Hat tip: Arts & Letters Daily)

• Via H-Law: the Center for Presidential History at Southern Methodist University has announced a call for short articles on the Election of 2004.

• If you're in New Haven, check out the Yale Law Library's new exhibit, "350 Years of Rebellious Lawyering." 

• Legal History Blogger Tomiko Brown-Nagin, Harvard Law School, is to deliver the Maurice and Muriel Fulton Lecture in Legal History at the University of Chicago Law School on May 8, 2014.  

• "A Constitutional History of the Long 1960s,”  Risa Goluboff’s lecture on November 12, 2013, marking her appointment as John Allan Love Professor of Law at the University of Virginia School of Law is downloadable here.

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

Ross, "Democracy and Renewed Distrust: Equal Protection and the Evolving Judicial Conception of Politics"

Bertrall L. Ross II (University of California, Berkeley School of Law) has posted "Democracy and Renewed Distrust: Equal Protection and the Evolving Judicial Conception of Politics," which was published in Volume 101 of the California Law Review (2013). Here's the abstract:

Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.

What explains these shifts? An easy explanation is that the Supreme Court has simply become more conservative. But what underlies this conservatism? In this Article, I argue that the Court’s own evolving conception of politics underlies the changes in the meaning of equal protection. In the past, the Court saw politics through the lens of pluralist theory, the crucial defect of which was the risk that minorities would be politically marginalized. That understanding has given way to a public choice conception in which the Court presumes these same minorities to be too politically powerful. In essence, one form of judicial distrust of democratic politics has replaced another.

I argue that two primary sources produced this renewed distrust: changing conservative views of the position of minorities in politics and a conservative legal movement that rejected pluralism in favor of public choice theory as the most accurate description of the operation of politics. I conclude by identifying important normative questions that this theory raises for constitutional law scholars and by offering a prescription for civil rights advocates seeking to influence judicial interpretations of the Equal Protection Clause.

The full article is available here.

Hat tip: Legal Theory Blog

Sunday Book Roundup

A new issue of the Federal Lawyer is out with several new reviews, including reviews of Stephen Harper's The Lawyer Bubble: A Profession in Crisis (Basic Books), Stuart Banner's American

Property: A History of How, Why, and What We Own (Harvard), and William Cooper's We Have the War Upon Us: The Onset of the Civil War, November 1960-April 1961 (Knopf). (All reviews can be found here.) Also in this issue, Henry Cohen reviews Freedom National: The Destruction of Slavery in the United States 1861-1865 (Norton) by James Oakes. Cohen writes,

"Freedom National is distinctive not only for its thesis that restoration of the union and the abolition of slavery were inseparable from the start, but for Oakes’ descriptions of how, as a practical matter, slavery collapsed. He examines, for instance, the upheavals in the four border states, where slaves fled to Union lines in large numbers and were not returned to their owners, despite the fact that these states were not subject to the Confiscation Acts or the Emancipation Proclamation. He discusses the “self-emancipation” of slaves who stayed behind when their owners fled their plantations upon the arrival of Union troops. He reports how, in 1862, “[a]fter decades of reluctance the Americans finally signed a slave-trade treaty that would allow the British to search American ships suspected of engaging in the illegal transatlantic slave trade.” He discusses how, after Congress abolished slavery in the District of Columbia in 1862, thousands of Maryland slaves fled to the District. He discusses how slaveholders moved their slaves to plantations farther inland in order to distance them from Union lines to which they could flee, and how the Union established “contraband camps” to accommodate the large number of slaves who did flee. He discusses how Union officers dealt with slave mothers who fled to Union lines with their children but could not be put to work as the men were." 

H-Net adds a review of Lisa G. Materson's For the Freedom of Her Race: Black Women and Electoral Politics in Illinois, 1877-1932 (University of North Carolina Press).

Historians Weigh in on the VRA Decision

Eric Foner, Clayborne Carson, and H. W. Brands comment on HNN.  See also Mark Graber on Balkinization.

New Release: Hadden & Minter, eds., "Signposts: New Directions in Southern Legal History"

This past weekend at OAH I had the pleasure of commenting on the panel "Race and Law: New Directions in Southern Legal History," chaired by David Lieberman (UC Berkeley) and featuring papers by Sally Hadden (Western Michigan University), Charles Zelden (Nova Southeastern University), and Patricia Minter (Western Kentucky University). The scholarship presented was terrific, but the real star of the show was Hadden and Minter's new edited collection, Signposts. According to the Acknowledgements, the "volume originated in a conversation many years ago, in the early morning hours before a long day at the Organization of American Historians annual meeting." It was fun to see the two editors, many conversations and conferences later, celebrating the product of their collaboration.

Here is a description of the book, from the University of Georgia Press website:

In Signposts, Sally E. Hadden and Patricia Hagler Minter have assembled seventeen essays, by both established and rising scholars, that showcase new directions in southern legal history across a wide range of topics, time periods, and locales. The essays will inspire today's scholars to dig even more deeply into the southern legal heritage, in much the same way that David Bodenhamer and James Ely's seminal 1984 work, Ambivalent Legacy, inspired an earlier generation to take up the study of southern legal history.

Contributors to Signposts explore a wide range of subjects related to southern constitutional and legal thought, including real and personal property, civil rights, higher education, gender, secession, reapportionment, prohibition, lynching, legal institutions such as the grand jury, and conflicts between bench and bar. A number of the essayists are concerned with transatlantic connections to southern law and with marginalized groups such as women and native peoples. Taken together, the essays in Signposts show us that understanding how law changes over time is essential to understanding the history of the South.

A few blurbs:

"Constitutional and legal history converge comfortably in this welcome rethinking of the southern legal heritage. Signposts is a milestone in the emergence of a more encompassing vision of the legal and constitutional history of the South."
—William M. Wiecek, author of The Birth of the Modern Constitution: The United States Supreme Court, 1941-1953 

"This collection is truly first rate, offering essays that plow new ground or offer fresh perspectives on more familiar topics. While the individual essays are more than worth the price of admission, together they offer rich insights into the ways law shaped and was shaped by southern society. Hadden and Minter have done an enormous service to the field of legal history by bringing this outstanding group of authors together in a volume that underscores the vitality of southern legal history and sets an ambitious agenda for future scholarship. —Donald G. Nieman, coeditor of Local Matters: Race, Crime, and Justice in the Nineteenth-Century South

After the jump -- a table of contents. (I got a sneak peak through my OAH commenting gig):

Foley on Hayes, Tilden and Samuel Randall

Edward B. Foley, Ohio State University College of Law, has posted Virtue Over Party: Samuel Randall's Electoral Heroism and Its Continuing Importance.  Here is the abstract:

Samuel Randall (Library of Congress)

This keynote address for the symposium on “Foxes, Henhouses, and Commissions: Assessing the Nonpartisan Model in Election Administration, Redistricting, and Campaign Finance,” at UC Irvine on September 14, 2012 has three parts. First, it explains why institutional reform, while necessary, is not by itself sufficient to achieve impartial governance of the electoral process in the public interest. Instead, institutional reform must be supplemented by an adequate measure of nonpartisan political virtue, in pursuit of the public interest, on behalf of elected and appointed officials responsible for the governance of the electoral process. Second, to illustrate this kind of electoral virtue, the middle (and main) part of this essay tells the largely forgotten — but highly significant — story of Samuel Randall’s conduct as Speaker of the U.S. House of Representatives on March 1, 1877, at the crucial climactic moment of the disputed Hayes-Tilden presidential election. As eyewitnesses understood, Randall’s resistance to hardliners within his own party averted the risk that the congressional counting of Electoral Votes would not be complete for the March 4 deadline for inaugurating the new president. Moreover, if March 4 had arrived with both Hayes and Tilden claiming the authority of Commander-in-Chief based on different interpretations of the constitutional consequences of an incomplete Electoral Count, the nation would have suffered a genuinely severe constitutional crisis. Therefore, Randall’s nonpartisan conduct to prevent the possibility of that constitutional crisis serves as an exemplary “profile in electoral courage,” to which contemporary and future politicians can aspire (if they, too, are put in a position where they must choose between partisanship and the public good when making a decision about the governance of the electoral process). The third (and final) part of the essay briefly explores how civics education, both in schools and in the culture more broadly, can invoke this and similar examples of electoral virtue, in an effort to cultivate an atmosphere in which other “profiles in electoral courage” are more likely to occur

Election Day! Zelden's Reading Picks

In honor of election day, we asked former guest blogger Charles Zelden (Nova Southeastern University) to provide us a list of must-read books on the history of election law and voting rights. He's been busy (he recently authored this election-related op-ed for the Huffington Post), but he generously complied. Here is his annotated reading list:

Alexander Keyssar, The Right To Vote: The Contested History of Democracy in the United States (Basic Books, 2000). Keyssar’s comprehensive survey of the highly contested, always evolving process by which Americans not only choose who can vote but also how we organize the ways in which voters cast ballots (and then how those ballots are counted), is the “gold standard” for voting rights books. If I had to pick a single book on voting rights to recommend to someone new to the topic, it would be Keyssar’s book.

Charles l. Zelden, Voting Rights on Trial (Hackett, 2004 [PB]): For those seeking a more concise overview than Keyssar’s fine book, with more focus on the role of litigation in shaping the right to vote, this distilled treatment provides a useful guide, with supplementary documents, through 2004.

Charles Zelden (credit)

Stephen F. Lawson, Black Ballots: Voting Rights in the South, 1944-1969 (Columbia U. Press, 1976 [HB]; Lexington Press, 1999 [PB]). Lawson’s book is a highly readable and informative account of the decades-long fight for African American voting rights in the South. Although later work on this subject has added nuance and scope to our understandings of the fight against African American disfranchisement in the South (in particular, exploring the grassroots origins of the fight for voting rights within the southern black community), Lawson’s book still stands as one of the best descriptions of the organized fight to break the back of racial disfranchisement.

R. Volney Riser, Defying Disfranchisement: Black Voting Rights Activism in the Jim Crow South, 1890-1908 (LSU Press, 2010). Riser offers a fascinating look at the earliest stages of the fight against African American disenfranchisement. His book reminds us that the defense of African American voting rights arose contemporaneously with Southern whites’ efforts to impose disfranchisement on Southern blacks. That these efforts to defend black voting rights failed did not make then any less important.

Christopher Malone, Between Freedom and Bondage: Race, Party and Voting Rights in the Antebellum North (Routledge, 2008). Focusing on African American voting rights in the antebellum North, Malone provides a useful counterbalance to the mostly south-centric work on African American voting rights and to the tendency to focus the study of the fight for African American voting rights on the twentieth century.