Talking Legal History: Chase's "We Are Not Slaves"

A new episode of Talking Legal History, a podcast hosted by Siobhan M. M. Barco, is now up on the website of the American Society of Legal History.

In this episode, Siobhan talks with Robert Chase about his book, We Are Not Slaves: State Violence, Coerced Labor, and Prisoners’ Rights in Postwar America (University of North Carolina Press, 2020). Chase is Associate Professor of History at Stony Brook University.

In We Are Not Slaves, Chase draws from three decades of legal documents compiled by prisoners to narrate the struggle to change prison from within. Told from the vantage point of the prisoners themselves, this book weaves together untold but devastatingly important truths from the histories of labor, civil rights, and politics in the United States as it narrates the transition from prison plantations of the past to the mass incarceration of today.

This episode is part of a series featuring legal history works from UNC Press. Support for the production of this series was provided by the Versatile Humanists at Duke program.

--Dan Ernst

Resnik on "Ruinous" Punishments under the 8th Amendment

Judith Resnik, Yale Law School, has posted (Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People's 'Ruin,’ which appeared in The Yale Law Journal Forum:

In 2019, all Justices on the U.S. Supreme Court agreed in Timbs v. Indiana that the Constitution’s prohibition on excessive fines applied to the states. The Court’s opinion discussed the Excessive Fines Clause’s “venerable lineage” and termed its protections “fundamental.” Justice Thomas, concurring, wrote that the English prohibition against excessive fines aimed to insulate citizens from what historians called “ruinous fines.”

This Essay puts Timbs into the context of the Court’s search for metrics to assess the legitimacy of governments’ choices about punishment. In and after the 1960s, as convicted and incarcerated people asserted that constitutional law constrained sovereign powers, the Court repeatedly encountered challenges to punishment. I bring together lines of cases that have sat in doctrinal silos to show the links between the concerns animating judicial limits on sentencing and judicial recognition of incarcerated people’s rights to safety, sanitation, food, medical care, access to courts, and religious observance. I argue that this body of law, produced through convicted individuals’ insistence that they were entitled to constitutional protection, should be read to constitute a nascent an-ti-ruination principle that all branches of government need to implement.

--Dan Ernst

Bessler's "The Baron and the Marquis"

John D. Bessler, University of Baltimore Law School, has published The Baron and the Marquis: Liberty, Tyranny, and the Enlightenment Maxim That Can Remake American Criminal Justice, with Carolina Academic Press:

The Baron and the Marquis explores the history of the maxim that articulates what is now known as the parsimony principle. That maxim: any punishment that goes beyond necessity is “tyrannical.” First articulated by Baron de Montesquieu and later publicized by the Italian criminal-law theorist, the Marquis Beccaria, that maxim shaped the American and French Revolutions and set the dividing line between tyranny and liberty. Thomas Jefferson believed only absolute necessity justified punishment, and the French Declaration of the Rights of Man and of the Citizen (1789) similarly allowed only “strictly and obviously necessary” punishments. In The Baron and the Marquis, award-winning author John Bessler shows the maxim’s modern-day implications for capital punishment, prolonged solitary confinement, and mass incarceration. The book argues that unnecessary punishments violate the U.S. Constitution’s Eighth Amendment as “excessive” and “cruel and unusual.”

Weekend Roundup

• WaPo’s Fred Barbash on my Georgetown Law colleague John Mikhail: "Trump’s ‘emoluments’ battle: How a scholar’s search of 200 years of dictionaries helped win a historic ruling."  Update: CNN’s Chris Cillizza’s email interview of Professor Mikhail.  DRE

• Now online on C-SPAN: Last month's National History Center briefing, on the History of US Trade Policy.

• Greg Taylor, University of Adelaide School of Law, has posted The Grand Jury of New Zealand, which appeared in LAWTALK 919 (July 2018): “Little is remembered of the grand jury of New Zealand nowadays, but it existed within living memory – after 118 years of operation starting in 1844, the last grand jury sat in Gisborne on 28 November 1961. As late as July 1961 a grand jury in Hamilton refused to permit a prosecution against an electricity worker for failing to provide the necessary safety equipment and thereby causing the death of a worker.”

• This week in the Washington Post's "Made by History" section: Alison Lefkovitz (New Jersey Institute of Technology/Rutgers-Newark) on "Jordan Peterson and the Return of the Men's Rights Movement."

• ICYMI: Josh Blackman & Seth Barrett Tillman on Lawfare: Is Robert Mueller an “Officer of the United States” or an “Employee of the United States”?  Seth Barrett Tillman, What is the "Privilege" of the Writ of Habeas Corpus? on New Reform Club. Michael Klarman in the Harvard Gazette: Are there holes in the Constitution?

• From "Talking Points Memo": Gregory Downs (UC Davis) on the 150-year history of today's voter suppression tactics.

• On the University of Leicester's Carceral Archipelago: Katy Roscoe on 19th-c. Gibraltar convicts and the sea.

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