Tuesday, May 6, 2008

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.