Weekend Roundup

• The National History Center's next Congressional briefing will be on the history of health care in the U.S.  It will be Friday, June 28, 2019 from 10:00 am-11:00 am, in the Gold Room, Rayburn House Office Building, Room 2168.  The speakers will be Beatrix Hoffman, Northern Illinois University, and Nancy Tomes, Stony Brook University. Alan Kraut, American University, will moderate.  Saith the NHC: “Why is the American health care system so costly, complex, and challenging for those who seek to legislate improvements in access to and quality of care? The answers are rooted in the historical forces that gave rise to the current system. Two leading authorities on the history of American health care will explain how we got where we are today.” 

• Deadline approaching:  Applications for ASLH Cromwell Research Fellowship grants for early career scholars are due on July 1.

• Over at Jotwell, Joanna Grisinger, Northwestern University, has posted The Federal Trade Commission as National Nanny, her appreciation of Rachel Louise Moran's "Fears of a Nanny State: Centering Gender and Family in the Political History of Regulation," in Shaped by the State: Toward a New Political History of the Twentieth Century 317 (Brent Cebul, Lily Geismer, and Mason B. Williams, eds., 2019).

• ICYMI:  The Supreme Court Rulings That Have Shaped Gay Rights in America (History Channel).  Why birthright citizenship is crucial to democratic governance, by Marixa Lasso, Universidad Nacional de Colombia, on WaPo’s "Made by History."  Also on WaPo's MbH: Karin Wulf, Omohundro Institute of Early American History & Culture and William & Mary, on What Naomi Wolf and Cokie Roberts teach us about the need for historians.

• And at the Conversation: Treva B. Lindsey, The Ohio State University provides this concise history of the US abortion debate, while Mark Fathi Massoud, UC Santa Cruz offers insights into the interaction between colonialism and Islamic law in Sudan.

• Update: Anna Jarvis interviewed on winning the R. Roy McMurtry Fellowship to research her great-great grandfather, Edward Jarvis, chief justice of the supreme court of Prince Edward Island (CBC).

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

Blackhawk on "Federal Indian Law as a Paradigm Within Public Law"

As I read Katie Eyer's piece on JOTWELL yesterday -- an admiring review of a recent article by Maggie Blackhawk (Penn Law) -- I was reminded that we had not yet flagged this article for our readers. There is lots of legal history here! Here's the abstract for "Federal Indian Law as a Paradigm Within Public Law," published this spring in the Harvard Law Review.

U.S. public law has long taken slavery and Jim Crow segregation as a paradigm case through which to understand our constitutional law: cases adjudicating issues of slavery and segregation form the keystones of our constitutional canon. Reconstruction, or the so-called “Second Founding,” and the Civil Rights Era periodize our constitutional histories. Slavery and Jim Crow segregation supply normative lessons about the strengths and failings of our constitutional framework. This paradigm teaches that if there is too much power in the states and not enough limitation on state power in the form of national power or rights, America might again reenact similar atrocities. Although there is much to learn from the United States’ tragic history with slavery and Jim Crow segregation, resting our public law on this binary paradigm has led to incomplete models and theories. This Nation’s tragic history of colonialism and violent dispossession of Native lands, resources, culture, and even children offers different, yet equally important, lessons about our constitutional framework.

In this Article, I argue for a more inclusive paradigm that reaches beyond the black/white binary, and I highlight the centrality of federal Indian law and this Nation’s tragic history with colonialism to public law. Currently, to the extent that federal Indian law is discussed at all within public law, it is generally considered sui generis and consigned to a “tiny backwater.” While I concede that the colonial status of Native peoples and the recognition of inherent tribal sovereignty do render aspects of federal Indian law exceptional, federal Indian law and Native history have much to teach about reimagining the constitutional history of the United States. Interactions between the national government and Native Nations have shaped the warp and woof of our constitutional law from the Founding across a range of substantive areas, including vertical and horizontal separation of powers, the Treaty Clause, war powers, executive powers in times of exigency, and many others. I aim to open a conversation as to whether these doctrines ought to take their rightful place in the canon or, perhaps, the anticanon.

Beyond simple canonization, federal Indian law offers paradigmatic lessons about the strengths and failings of our constitutional framework. Broadening the binary paradigm to include federal Indian law could allow interventions into a range of general principles of public law. It has often been said that federal Indian law is “incoherent” and in need of reform, because the doctrine does not comport with general public law principles. But perhaps it is the general principles of public law, and the incomplete paradigm of slavery and Jim Crow segregation on which those principles rest, that are in need of reform.

More than simple canonization, the inclusion of federal Indian law as an additional paradigm case could lead to fundamental reformulation. A full catalogue is beyond the scope of this Article, but I offer an example here in the hope that it will invite more. As I’ll show, federal Indian law leads public law to a very different set of principles in the context of minority protection, unsettling reigning theories of how best to distribute and limit power in order to prevent government abuse of minorities. Unlike slavery and Jim Crow segregation, federal Indian law teaches that nationalism is no panacea for majority tyranny, and that rights can wound as well as shield minorities.

Here's a taste of Professor Eyer's review:

Federal Indian law might seem an unlikely paradigm around which to center our understanding of constitutional law. But as Maggie Blackhawk lays out in her excellent new article, Federal Indian Law as Paradigm Within Public Law, the history of Native Nations and indigenous peoples in the United States, and their treatment as constitutional subjects, is equally central to our constitutional history as slavery and Jim Crow. And yet it is far less common for Native history to play a role in our canonical stories and in our understandings of what constitutional law does, or ought to, provide.

Read on here.

-- Karen Tani

Hanley on nationality in Alexandria

Back in 2017, Will Hanley (Florida State University) published Identifying with Nationality: Europeans, Ottomans, and Egyptians in Alexandria with Columbia University Press. From the publisher:

Nationality is the most important legal mechanism sorting and classifying the world's population today. An individual's place of birth or naturalization determines where he or she can and cannot be and what he or she can and cannot do. Although this system may appear universal, even natural, Will Hanley shows that it arose just a century ago. In Identifying with Nationality, he uses the Mediterranean city of Alexandria to develop a genealogy of the nation and the formation of the modern national subject.

Alexandria in 1880 was an immigrant boomtown ruled by dozens of overlapping regimes. On its streets and in its police stations and courtrooms, people were identified by name, occupation, place of origin, sect, physical description, and other attributes. Yet by 1914, before nationalist calls for independence and decolonization had become widespread, nationality had become the defining category of identification, and nationality laws came to govern Alexandria's population. Identifying with Nationality traces the advent of modern citizenship to multinational, transimperial settings such as turn-of-the-century colonial Alexandria, where ordinary people abandoned old identifiers and grasped nationality as the best means to access the protections promised by expanding states. The result was a system that continues to define and divide people through status, mobility, and residency.

Praise for the book:

 "What nationality are you? In his stunning book, Will Hanley follows this modern question deep into the social existence of ordinary Alexandrians, demonstrating the contradictory effects of its imposition. The results open a portal, not simply on a unique city in the tumultuous years between Ottoman rule and Egyptian semi-sovereignty, but also on a pivotal global experience that historians have missed. In this lucidly written and well-researched book, Hanley rewrites the history of international law and intervenes brilliantly in multiple literatures. A must-read." -Samuel Moyn,

"Hanley's book is a superb historical and sociolegal account of the rise of nationality—the universal regime of legal identification that captures what is unique about the modern world. Along the way, Hanley vividly captures the loss of another world: of concrete and heterogeneous forms of life that sought protection in other networks of affiliation. I recommend this remarkably researched and beautifully written book to scholars in Middle Eastern studies, and also to anyone who is thinking about a key characteristic of our world—the persistence of statelessness." -Samera Esmeir

"Identifying with Nationality is a magisterial investigation into Alexandria's diverse population, which comprised interwoven European, colonial, local, imperial, and national entities. Will Hanley examines this patchwork setting, clarifies that nationality at the end of the nineteenth century was a European privilege, and explores the process by which it would become what it is today: the most fundamental human right. An illuminating masterpiece." -Patrick Weil

Further information is available here.