Ray, "The Trial That Shook Britain: How a Court Martial Hastened Acceptance of Indian Independence"

Routledge India has released The Trial That Shook Britain: How a Court Martial Hastened Acceptance of Indian Independence (2024), by Ashish Ray. A description from the Press:

The Indian National Army (INA) trials of 1945-46 have generally been given short shrift by historians in their cataloguing of the Indian freedom movement. This book examines to what extent the trials had an impact on the final phase of India's quest for independence. In so doing, it unveils that, while the Indian National Congress's extended odyssey to win independence was essentially about a passive push-back, at a critical juncture of its campaign to extinguish British colonialism in India, it applauded and capitalised on the INA's use of force. The central, explosive narrative is about Britain holding a court martial of three officers of the INA - Shah Nawaz Khan, Prem Sahgal and Gurbaksh Dhillon - convicting them, before a dramatic turn in events.

The material unearthed by the book throws new light on a decisive juncture leading to the transfer of power in India. It will be indispensable for researchers interested in South Asia, especially the Indian freedom movement. It will be invaluable for students of history, colonialism, military studies, politics in pre-Partition India and law.

An interview with the author is available here, at New Books Network.

-- Karen Tani

Ablavsky & Berger on Birthright Citizenship -- "Subject to the Jurisdiction Thereof: The Indian Law Context"

Gregory Ablavsky (Stanford Law) and Bethany Berger (University of Iowa College of Law) have posted "Subject to the Jurisdiction Thereof: The Indian Law Context" - a timely intervention in the debate over birthright citizenship. The article will appear in the online companion to the New York University Law Review. Here's the abstract:

Section 1 of the Fourteenth Amendment provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  Much of the debate over the meaning of this provision in the nineteenth century, especially what it meant to be “subject to the jurisdiction” of the United States, concerned the distinctive status of Native peoples—who were largely not birthright citizens even though born within the borders of United States. 

It is unsurprising, then, that the Trump Administration and others have seized on these precedents in their attempt to unsettle black-letter law on birthright citizenship.  But their arguments that this history demonstrates that jurisdiction meant something other than its ordinary meaning at the time—roughly, the power to make, decide, and enforce law—are anachronistic and wrong. They ignore the history of federal Indian law.

For most of the first century of the United States, the unique status of Native nations as quasi-foreign entities was understood to place these nations’ internal affairs beyond Congress’s legislative jurisdiction. By the 1860s, this understanding endured within federal law, but it confronted increasingly vocal challenges. The arguments over the Fourteenth Amendment, then, recapitulated this near century of debate over Native status. In crafting the citizenship clause, members of Congress largely agreed that jurisdiction meant the power to impose laws; where they heatedly disagreed was whether Native nations were, in fact, subject to that authority. Most concluded they were not, and in 1884, in Elk v. Wilkins, the Supreme Court affirmed the conclusion that Native nations’ quasi-foreign status excluded tribal citizens from birthright citizenship. 

But the “anomalous” and “peculiar” status of Native nations, in the words of the nineteenth-century Supreme Court, means that the law governing tribal citizens cannot and should not be analogized to the position of other communities—or at least any communities who lack a quasi-foreign sovereignty and territory outside most federal and state law but within the borders of the United States. Indeed, the Court in Wong Kim Ark expressly rejected the attempt to invoke Elk v. Wilkins to deny birthright citizenship to a Chinese man born in the U.S. to non-citizen parents, ruling that the decision “concerned only members of the Indian tribes within the United States.” The analogy has no more validity today than it did then, and the current Court should continue to reject it.

Read on here, at SSRN.

-- Karen Tani

Weekend Roundup

• From Time's "Made by History" section: Ajay Mehrotra (Northwestern/American Bar Foundation) and John Fabian Witt (Yale) on "Tax Season and the Making of the American Fiscal State"; Betsy Wood (Bard Early College), "Paying Your Taxes Used to Be Patriotic"; and more.
  

• "Historians Respond to Federal Actions" is a new resource page from the American Historical Association. Track federal actions affecting historians, get tips on writing an op-ed, and read AHA statements and action alerts.
  

• Over on Bluesky, former LHB blogger Mitra Sharafi posed an interesting question: "Can anyone recommend work by historians on the theme of secrets, especially: secrets the historian encounters intentionally or not, and what they decide to do with them in their scholarship? Any time or place." Check out the replies and add your own if you have thoughts! 
  

• Congratulations to this year's recipients of John Simon Guggenheim Memorial Foundation Fellowships, including Kellen Funk, Mark Graber and Martha Jones! 

• A recording of that panel, "Lessons from History,"  at the symposium "Where Does Administrative Law Go from Here?" held at NYU Law last week is now up on YouTube.  In addition to me, Joanna Grisinger, Julian Davis Mortenson, and Nicholas Parrillo presented.  Noah Rosenblum moderated.  DRE. 
  

• Steven Vladeck reviews Alison L. LaCroix’s The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms on Jotwell.
  

•  Joseph W. Bellacosa reviews The Most Powerful Court in the World: A History of the Supreme Court of the United States, by Stuart Banner (Law.com).  And Professor Banner on Presidents and the Supreme Court (WaPo).

• The National Archives posted the first tranche of records relating to the assassination of Robert F. Kennedy yesterday.  
  

• A notice of the memorial lecture Martha Jones recently delivered on her book, The Trouble of Color at North Carolina State University (Technician).
  

• My Georgetown Law colleague John Mikhail has posted "Birthright Citizenship and DOJ’s Misuse of History in Its Appellate Briefs" (Just Security). 
  

• In honor of Law Day, the Multnomah Bar Association YLS Service to the Public Committee has organized a workshop at the University of Oregon's Portland campus on The Legal Legacy of Japanese American Incarceration on Monday, May 5, 2025, 6 p.m.–8 p.m.  (Portland).

• Joseph Ellis on "the key compromises over slavery at the Constitutional Convention" (NCC's YouTube Channel).
  

• BC Law's notice of a new faculty member the legal and constitutional historian Marco Basile (BC Law).

• ICYMI: Michele Chen on deporting activists under the McCarran-Walter Act (Progressive). Steven Hahn on deportations and the illiberal history of the United States (Guardian).   HUAC is Back (Lawfare).  Scott Reynolds Nelson on Radical Tariffs, an American Story (Perspectives on History).  1,900-year-old Roman papyrus details elaborate tax evasion scheme (CBC).

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

Wurman on Birthright Citizenship

Ilan Wurman, University of Minnesota Law School, has posted Jurisdiction and Citizenship:

A recent executive order denying birthright citizenship to children born to persons temporarily visiting or unlawfully present in the United States has reignited debate over the original meaning of the Fourteenth Amendment’s Citizenship Clause. The historical evidence is more nuanced than advocates on either side have long assumed. The clause appears to have required the parents of a child born to be subject to the complete municipal jurisdiction of the United States. If the law of nations applied, or if there was an international law exception to the exercise of a legislative or judicial jurisdiction over a foreigner within the territory, then any child born would not have been subject to the jurisdiction of the United States in the relevant sense.

One condition precedent to the applicability of an ordinary, municipal jurisdiction was that the alien parents be under the protection and within the allegiance of the sovereign. Some evidence further suggests that this condition required a mutual compact between alien and sovereign. This international law framework explains not only the birthright citizenship exceptions for ambassadors and armies, who were subject to the law of nations, but also jurisdictional rules relating to alien enemies, distressed vessels, Native American tribes, consular jurisdiction, and postliminy, which do not tightly fit territorial accounts of jurisdiction. It may also explain why commentators and executive branch officials thought domicile relevant to claims of birthright citizenship. This account is not the only possible reading of the evidence and is not without its questions. Yet it provides a powerful explanatory framework that fits much of that evidence without some of the problems of more conventional accounts. 

--Dan Ernst

Morris L. Cohen Student Essay Competition

[We have the following announcement.  DRE]

The Legal History and Rare Books Special Interest Section (LHRB) of the American Association of Law Libraries, in cooperation with The Lawbook Exchange, Ltd., is conducting its annual Morris L. Cohen Student Essay Competition.  Full- and part-time students currently enrolled in accredited graduate programs in law, history, library science, or related fields are eligible to enter.  Essays may be on any topic related to legal history, rare law books, or legal archives.  Criteria on which papers will be judged include originality of topic or approach, quality and depth of research and analysis, clarity of presentation, and contribution to the field.  The winner will receive a $1,000 prize from The Lawbook Exchange, Ltd., and will present the essay at an LHRB sponsored webinar.  The authors of the winning and runner-up essays will have the opportunity to publish their essays in LHRB’s online scholarly journal Unbound: A Review of Legal History and Rare Books.  The Competition electronic submission deadline is 11:59pm EDT, Friday, 20 June 2025.

 

Full Competition details are available at the LHRB Cohen Essay Contest: Full Explanation web page, and the Application Form is available at the LHRB Cohen Essay Contest: Application web page.  Questions may be sent to Laura Ray (l.ray@csuohio.edu), Outreach & Instructional Services Librarian, Cleveland State University College of Law.  The Competition is named in honor of Morris L. Cohen, late Professor Emeritus of Law at Yale Law School and recognized as “one of the towering figures of late 20th century law libraries.”  His scholarly work focused on legal research, rare law books, and historical bibliography.

Pimm-Smith on the Poor Law and the Adoption Act

Rachel Elizabeth Pimm-Smith, Warwick Law School, has published, online and open access, From the Poor Law to the Adoption of Children Act 1926: Another Punishment for Being Poor in Law and History Review:

This article makes the case for recognizing the connection between the Poor Law and the Adoption of Children Act 1926. A child who received welfare under the Poor Law could be de facto adopted by the guardians as early as the late-nineteenth century. Very little is known about this type of de facto adoption which is a significant gap because over 10,000 children were adopted in this way, and it provided the basis for latter de jure adoption. This article initiates the process of filling this gap by exploring archival resources to determine why children were de facto adopted under the Poor Law before the introduction of de jure adoption in 1926. Understanding this form of de facto adoption is important because it was justified as a mechanism of child protection, but this article contends it was another form of punishment designed for families experiencing material deprivation which directly influenced the law on de jure adoption in England. By establishing the connection between the 1926 Act and its Poor Law predecessor, the de jure adoption framework can be contextualized within its wider social history which is embedded in class conflict and distrust toward impoverished families.

--Dan Ernst

Bentham, the Panopticon, and "A Picture of the Treasury"

Jeremy Bentham (NYPL)

[Via H-Law, we have the following announcement.  DRE]

Jeremy Bentham, the Panopticon penitentiary scheme, and "A Picture of the Treasury"

The aim of the conference is to discuss the forthcoming critical edition of "A Picture of the Treasury" in The Collected Works of Jeremy Bentham (UCL Press), publishing for the first time Bentham’s personal account of his dealings with the government, most notably the Treasury department, but also the Home Office, in his attempts to erect, and to become governor of, a panopticon penitentiary.

"A Picture of the Treasury" (written in 1802) contains Bentham’s highly detailed reflections on his dealings with and treatment by government officials between 1798 and 1802, and gives a unique insight into how he felt at this time. He exposes the individuals by whom, and administrative processes and malpractices by which, he believed his interests, and the public interest at large, had been thwarted. Bentham states, for instance, that his "adversary," the British government, had all along sought to abandon the panopticon scheme by making things so drawn out that he might have been "provoked … beyond endurance," give up through "weariness and despondency," or simply die—die either "in the natural way of things," as a result of "wear and tear of vexations and disappointments," or even by him being driven to suicide.

The text consists of twenty-four sections, which are interspersed with over one hundred pieces of documentary evidence, including letters sent and unsent, extracts from official documents and third-party correspondence, alongside Bentham’s own commentary, all of which, Bentham says, might serve in prompting people to ask, "Well—and when this came out—what were your feelings?—and how did you endure it?"

To register and for more details, and to download a preliminary version of A Picture of the Treasury, please visit the conference website [here].  

Schedule after the jump.

Booth on the Legal History of the Satanic Panic

Jonathon Booth, University of Colorado Law School, has posted A New Satanic Panic, which is forthcoming in the Yale Journal of Law and Feminism:

A broad backlash to LGBTQ visibility and equality has emerged in recent years. Its conservative proponents have asserted that queer people are Satanic, called gender affirming healthcare child abuse, and labeled adults who teach about gender and sexuality “groomers.” This rhetorical shift, combined with an explosion of anti-transgender legislation, may presage a revival of the 1980s Satanic Panic, when fears of brutal crimes allegedly committed by Satanic cults swept the nation. These accusations spurred the longest trial in American history, commanded tabloid news, and led dozens of people to be convicted of lurid crimes, nearly all of whom were later exonerated. Today we are at risk of a similar panic reoccurring, in which baseless criminal prosecutions may be brought against LGBTQ people and their allies, especially in conservative Christian areas.

This Article provides the first historical account of the original Satanic Panic in the legal literature, narrating two major criminal cases and examining the underlying causes of the Panic, including backlash to the feminist and gay liberation movements. It then analyzes the widespread discourse on the political right that connects “gender ideology” to Satanism and child abuse, and the broad adoption of legislation restricting and criminalizing access to gender affirming healthcare. Finally, it evaluates the likelihood of a reoccurrence of the Satanic Panic, weighing the growing animus against LGBTQ people against more encouraging changes, such as improved interrogation practices. It concludes that there is a significant risk that the current moral panic around transgender people could result in a new Satanic Panic. Finally, it proposes actions that lawyers and advocates could take to reduce the likelihood of unjust prosecutions.

--Dan Ernst

Constitutional Meaning in the Shadow of the Articles of Confederation

[We have the following announcement.  DRE]

On Monday, May 12, the Brennan Center for Justice and the National Constitution Center present a symposium exploring how the Articles of Confederation shaped the U.S. Constitution. Historians, legal scholars, and journalists . . .will examine the legacy of the Articles of Confederation, the founding debates over federal power, and the lasting influence of these debates on constitutional interpretation today.  Free in person and online.

11-11:15 a.m. | Introductory Remarks

Jeffrey Rosen, president and CEO, National Constitution Center
Michael Waldman, president and CEO, Brennan Center for Justice

11:15 a.m.–12:30 p.m. | Panel 1: The Articles of Confederation

Explore the origins of the Articles of Confederation—examining the political, practical, and ideological reasons behind the states' sovereignty—and how the “firm league of friendship” among the 13 states ultimately became unworkable.

Aditya Bamzai, Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, University of Virginia School of Law
Johann Neem, professor of history, Western Washington University
Farah Peterson, professor of law, University of Chicago Law School
Jack Rakove, Coe Professor of History and American Studies, professor of political science emeritus, Stanford University
Moderator: Alicia Bannon, director of the Brennan Center Judiciary Program

12:30–1:15 p.m. | Lunchtime Keynote

1:15–2:30 p.m. | Panel 2: Debating the Constitution 

Examine the reasons for the Constitution’s plan of government, how it was understood at the time, and how concerns over its failings were addressed through ideological debates at the Constitutional Convention.

Jay Cost, Gerald R. Ford Nonresident Senior Fellow, American Enterprise Institute
Jonathan Gienapp, associate professor of history, associate professor of law, Stanford University
Kermit Roosevelt, David Berger Professor for the Administration of Justice, University of Pennsylvania Carey Law School

2:45–4 p.m. | Panel 3: The War Over the Constitution’s Meaning

Explore governance under the new Constitution and the Articles’ long shadow, from the early republic to the post–New Deal modern era, and how competing narratives of the Constitution’s origin story evolved.

Ilya Somin, professor of law, Antonin Scalia Law School at George Mason University
Alan Trammell, associate professor of law, Washington and Lee University School of Law
Moderator: Wilfred U. Codrington III, Walter Floersheimer Professor of Constitutional Law, Benjamin N. Cardozo School of Law; fellow, Brennan Center

4–4:15 p.m. | Closing Reflections

Weekend Roundup

• Over at Balkinization, John Q. Barrett lets us, too, read Charles Reich's mail as Reich decides between Paul, Weiss and Arnold Porter & Fortas in 1955.

•  Harold Koh et al.: Bills of attainder are back, but shouldn't be (Just Security).
  

• Evan Bernick's posts on birthright  citizenship (Volokh Conspiracy).
  

• The Florida Supreme Court Historical Society invites judges, lawyers, law professors, and other citizens to serve on its board of trustees.
  

• Modern Criminal Law Review 1:2 (2025) is a special issue, edited by Simon Stern, University of Toronto, devoted to Criminal Law, Literature, and History.

• We missed it, but on Thursday the American Constitution Society held the session,  Can New Histories of Reconstruction Transform the Constitution? with Khiara M. Bridges, Aderson François, Olatunde Johnson, Martha S. Jones, Osagie Obasogie, and Farah Peterson. 
  

• "The Supreme Court of Ohio announces the development of a new exhibit, Women in the Law, which celebrates the trailblazing contributions of women to Ohio’s legal history" (Court News Ohio).

• 
  
  The Florida Supreme Court Historical Society invites judges, lawyers, law professors, and other citizens to serve on its board of trustees.

• UMass Law Professor Faisal Chaudhry spoke on his book, South Asia, the British Empire, and the Rise of Classical Legal Thought: Towards a Historical Ontology of the Law at the Centre for Intellectual History at the University of Oxford and at the University of London’s School of Oriental and African Studies (UMass Law).
  

• 
  A (paywalled) review of Tangled Fortunes: The Hidden History of Interracial Marriage in the Segregated South (Basic Books) by Kathryn Schumaker, University of Sydney (WSJ).

• Here's the CFP for the annual meeting of the Organization of American  Historians in April 2026 in Philadelphia.

• This year's Summer Civic Institute of the Center for Constitutional Studies at Utah Valley University will be devoted to the Declaration of Independence.
  

• ICYMI: For the legal history of Dorset, be sure to stop in at the Shire Hall Museum in Dorchester (Dorset Echo). Two Fourth Circuit Judges visited Constitutional history class at the Virginia Military Institute (VMI).  David Corn on the War on History (Mother Jones).  ProPublica on the origins of the income tax and Window + Door on the history of tariffs.  Alexander Keyssar and Sean Wilentz quoted on the SAVE Act (Election Law Blog).

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

Fitzsimmons on the French Constitution of 1791

Michael P. Fitzsimmons has published The Forgotten Constitution: The Origins, Realization, and Legacy of the French Constitution of 1791 (Oxford University Press):

The French Constitution of 1791 has a major legacy that overturned many centuries of historical tradition but remains little known outside of France. It ratified the unprecedented transformation of a society based on monarchy-centered government and legal privilege to one based on a sovereign citizenry and legal equality. Its powerful impact served as the inspiration for the wave of constitution-making that engulfed Europe during the nineteenth century and expanded globally thereafter. Furthermore, with the Declaration of the Rights of Man and Citizen as its original preamble, the Constitution of 1791 is associated with the concept of human rights proclaimed by the United Nations in the Universal Declaration of Human Rights in 1948.

Drawing on wide-ranging and long-overlooked manuscript sources, The Forgotten Constitution highlights the Constitution of 1791's underappreciated importance and influence in the world. The constitution was the product of a long-term crisis of the Bourbon monarchy grounded in fears of despotism. The idea of a constitution took hold during the 1780s as the means to stabilize the kingdom through a more equitable distribution of power while attempting to accommodate a king. By making a constitution a compact between monarch and people, by its written assurance of civic and natural rights, and by its assertion of legal equality as an essential element of political legitimacy, the Constitution of 1791 codified the principles of the French Revolution. This book shows how it was the French constitutional tradition, inspired by the Constitution of 1791, that drove the Western constitutional ideal, especially in the revolutions of 1848.

--Dan Ernst

Fleming's "Equity and Trusts in Sanskrit Jurisprudence"

 Christopher T. Fleming has published Equity and Trusts in Sanskrit Jurisprudence in the British Academy Monographs of Oxford University Press:

This monograph outlines the core principles of Equity and Trusts in Sanskrit jurisprudence (Dharmasastra) and traces their application in the practical legal administration of religious and charitable endowments throughout Indian history. Dharmasastra describes phenomena that, in Anglo-American jurisprudence, are associated with courts of equity: the management of religious and charitable trusts; and the guardianship of those who lack legal capacity. Drawing on Sanskrit jurisprudential and philosophical texts, ancient inscriptions, Persian legal documents, colonial-era law reports, and contemporary case law, Equity and Trusts in Sanskrit Jurispudence demonstrates that India's rulers have drawn on rich and venerable Sanskrit jurisprudential principles of equity and trusts in their efforts to regulate religious and charitable endowments. This book presents the history of India as a history of trusts, revealing how the contemporary law of Hindu religious endowments is subtended by a rich mélange of Sanskritic, Persianate, British, and constitutional jurisprudential principles.

--Dan Ernst

Cronan on the Patroon System and NY Landlord-Tenant Law

Liam Cronan, who currently serves as a law clerk in the U.S. District Court for the District of Massachusetts, has posted Rent, Riots, and Rensselaer: The Patroon System of New Netherland and Its Lasting Influence on the History of Landlord-Tenant Law:

For more than two-and-a-half centuries, a Dutch aristocracy thrived in upstate New York. Known as “patroons,” these powerful landlords controlled vast tracts of land, claimed by the Netherlands in the 1620s, and extracted rents from those lands well into the nineteenth century. Among the first and most influential patroons was Kiliaen van Rensselaer, whose interactions with colonial agents left behind a rich and extensive body of legal records. As these sources reveal, the patroon system’s unique constitution, derived from Dutch civil law, granted the patroon a seemingly feudal right with no analog in Anglo-American legal history: the ability to sell part of his land yet still require rent payments from his former “tenants.” Despite initial efforts to curtail it, this system persisted long after New York transitioned from a colony to a state, perplexing courts and lawyers alike for generations. After a violent uprising known as the Anti-Rent Movement failed to end the patroon’s claims to perpetual rent, New York courts faced a slew of cases challenging the patroon system’s legality. These cases exposed, and attempted to harmonize, the inherent conflict between English common law and Dutch civil law, which continued to shape New York law long after Dutch colonial rule ended, setting lasting precedents for property rights, landlord-tenant law, and the ability to bind property with perpetual conditions. But despite this significance, the patroon system has long been undervalued by legal historians, with most recent scholarship mentioning it only in passing. In resurrecting this neglected area of property law, this article seeks to impart a historically informed understanding of the patroon system and its enduring impact on landlord-tenant law. It will begin by tracing the origins of the patroonship as a tool to aid Dutch colonization. Drawing on careful analysis and translation of the records Van Rensselaer and his agents left behind, it will then demonstrate how the patroonship formed an interlocking system of property rights that provided patroons like Van Rensselaer with not only the right to collect rent but also to control his tenants’ labor, direct local commerce, broker debts, and even establish his own laws and courts. Finally, it will examine a series of key nineteenth-century cases and treatises, illustrating the nuanced legacy of the patroon system and its complex interactions with Dutch and English legal traditions. By connecting the patroon system to the broader evolution of American property law, from contemporary landlord-tenant statutes to cases on COVID-19 mask requirements, this article will reveal its lasting influence on property law and its rightful place in American legal history.

--Dan Ernst

Barbas on Originalism and Free Speech

Samantha Barbas, University of Iowa College of Law, has posted Originalism in Modern Free Speech History:

Contrary to what is often assumed, originalism has played an important role in our free speech history. During the 1950s, originalist interpretations of the First Amendment as prohibiting the crime of seditious libel became popular in legal argumentation, court rulings, and in popular culture more generally. The reason for the popularity of this argument was the Red Scare. Liberal lawyers, judges, and scholars deployed originalist arguments in their battles against government anticommunist measures. They argued that the original meaning of the First Amendment was the ban on punishment for criticism of the government, and that many of the government’s anticommunist measures were effectively a form of prosecution for seditious libel and unconstitutional.

This essay describes the popularization of First Amendment originalist arguments in the 1950s and early 60s, culminating in New York Times v. Sullivan. It explains how originalist First Amendment arguments came to be seen as an important liberal line of defense against government anticommunist efforts. Activists, scholars, lawyers, and justices on the left mobilized in a loosely affiliated sort of First Amendment “originalist movement” in an attempt to defeat the Red Scare. Ultimately, the essay suggests that originalism is a legal and social phenomenon that is intimately intertwined with culture and politics. Originalist ideas arise from multiple sources, including interest groups, intellectuals, journalists, lawyers, and ordinary citizens. The case study offers one example of how legal advocates and scholars in the mid-twentieth century deployed originalist arguments instrumentally, in response to the circumstances and perceived exigencies of their times. 

--Dan Ernst

Panel on the History of Administrative Law at NYU

I’m on a legal history panel at the NYU Law Review’s annual symposium, Where Does Administrative Law Go from Here? which will take place this Friday and is co-sponsored by NYU Law's Institute for Policy Integrity.  The other panelists are Joanna Grisinger, Northwestern University; Julian Mortenson, University of Michigan Law School; and Nick Parrillo, Yale Law School.  Noah Rosenblum, NYU School of Law, will moderate.

--Dan Ernst

CFP: ASLH/Notre Dame Graduate Legal History Colloquium

[We have the following announcement.  DRE]

The ASLH/Notre Dame Graduate Legal History Colloquium will again convene a series of graduate works-in-progress colloquia during the 2025-2026 academic year. With the financial support of the American Society for Legal History, Notre Dame Law School, The Graduate School, and the Center for Citizenship and Constitutional Government, the forum offers graduate students a valuable platform to present their research.

Dennis Wieboldt, a joint J.D./Ph.D. student in history, is spearheading the forum, which is now in its second year. The colloquium is currently accepting applications from prospective presenters, with graduate students in law schools and humanities departments encouraged to submit draft articles and express interest in presenting.

The ASLH/Notre Dame Graduate Legal History Colloquium is currently accepting applications from prospective presenters. Graduate students in law schools and/or humanities departments are encouraged to indicate their interest in presenting draft articles here.

The convenings will be held on the Notre Dame Law School campuses in Chicago and South Bend in October and November of 2025, and then again in February, March, and April of 2026.

The forum will provide budding legal scholars and practitioners with feedback on works-in-progress—an important step in fine-tuning research to a point where it can be submitted for publication. “This graduate legal history colloquium is a wonderful way to foster new scholarship,” said Donald Stelluto, co-director of the Center for Citizenship and Constitutional Government. “By bringing together talented faculty and students from several disciplines to engage each other as interlocutors, we, at the Center, hope that our support has the effect of forming lasting relationships as a community of scholars and a level of engagement that continues to elevate probative study of the major issues in legal history.”

“As the successes of this year’s workshops illustrate, Notre Dame is an excellent place to think seriously about the role of history in contemporary legal practice,” Wieboldt added. “I am excited to continue to welcome students and faculty from other institutions to engage in conversation with members of the Notre Dame community.”

The ASLH/Notre Dame Graduate Legal History Colloquium is open to master’s and doctoral students, as well as law students. Students will have the opportunity to present works-in-progress at convenings of the colloquium, and each work-in-progress will have a designated faculty commentator. All works in progress will be pre-circulated to prospective attendees to facilitate a robust discussion.

Weekend Roundup

• Ajay K. Mehrotra reviews Dylan C. Penningroth's Before the Movement in the Los Angeles Review of Books.

• A notice of the Legal History Consortium at Penn, led by LHB Blogger Karen Tani, with due credit given to Past ASLH President Susan Barringer Gordon, who was Professor Tani's predecessor as director of the consortium.  Also Professor Tani is among those faculty quoted by the Daily Pennsylvanian on teaching during Trump 2.0.  DRE 
  

• The Reed Gallery of the Dunedin Public Library has mounted an online exhibition of its Mary Downie Stewart Collection, a collection of portraits and autographed specimens of New Zealand judges, some of whom I discussed in this.  H/t: MW.  DRE

• A recording of that Tenement Museum-sponsored conversation, Receiving The Irish: The Origins of American Immigration Policy, with Hidetaka Hirota and Kevin Kenny. 
  

• The April 2025 issue of the Newsletter of the Historical Society of the District of Columbia Circuit is now available here.  It includes a summary of the recently opened oral history of Judith Areen.

• Brian Leiter reports on the Oxford University Press's current policy on review copies (Leiter Reports).
  

• 
  We've heard that the movie option for Victoria Saker Woeste's Henry Ford’s War on Jews and the Legal Battle Against Hate Speech has been picked up and look forward to seeing it on the big screen.

• Lawbook Exchange's April catalogue of Scholarly Law and Legal History.

• Made by History, via Time Magazine: Michelle Bezark on What the Children’s Bureau Teaches us About Promoting Federal Programs.  Brendan A. Shanahan says that A Century-Long Battle Over the Census is Brewing.  Jeanne Theoharis on How Newspapers Struggled to Cover Martin Luther King Jr. and Segregation in the North.  Hidetaka Hirota on The Long American Tradition of Categorizing Immigrants as Either Good or Bad.

• ICYMI: Lorianne Updike Schulzke makes an originalist case against overturning Humphrey's Executor (Volokh Conspiracy).  Mark Tushnet on why he signed the HLS faculty's letter to their students (Balkinization).  Andrew Wender Cohen on the history of tariffs (PBS). The lesson of Loving for the Roberts Court (Minnesota Star Tribune). A Short Course in Justice: the Freedmen’s Bureau Courts (JSTOR Daily).  Ellen Schrecker says that the current assault on the university is worse than McCarthyism (The Nation).

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

Poole and Clark on Adam Smith's Concept of "The Federative"

Thomas Poole and Martin Clark have published The Fragile Power of Political Nations: Adam Smith’s Federative open access in Modern Intellectual History:

Adam Smith (NYPL)

This article examines Adam Smith’s concept of the federative: the double-facing constitutional power to conduct international relations today called the treaty or foreign-affairs power. We reconstruct Smith’s account of the federative from his major and minor works and demonstrate its importance in his account of law and empire. We first examine Smith’s early “internal federative,” where the power grows from the internal constitutional organization of the state. What starts as a democratic right to wage war and make peace becomes concentrated over time in the sovereign and its advisers as a “senatoriall” power. We then turn to the “external federative” in Smith’s later works, where the federative is redesigned as a power to unify colonial legislative bodies, connecting the familial sentiments of Britain and America, and forming a model for moving, slowly, towards the conditions Smith deemed necessary for international justice.

--Dan Ernst

Cai on Tort Law in Early Imperial China

Liang Cai has published open access in Law and History Review Absence of Talion and Tort Law in Early Imperial China (221BCE-9 CE): How Body Politic Cancelled Corrective Justice:

From a comparative perspective, this paper argues that early Chinese empires lacked the concept of talion or tort law when malicious violence or intent became factors. Instead, wrongdoers were required to pay fines to the government or received punishment as hard labor for the state. Victims not only could not receive compensation but were sometimes punished along with the offender if their loss was perceived as a loss to the empire. I argue that the absence of corrective justice in criminal cases can be traced back to the philosophical underpinnings of the body politic, a prominent discourse in early China that viewed the emperor and the people as a single, organic entity. When people were conceived of as constituting a unified, singular entity, criminal actions against an individual were interpreted as damage to the empire. Therefore, punishments for offenders were designed to compensate the empire, not the individual. Furthermore, in the context of the body politic, the suffering of both victims and offenders was regarded as metaphysically equal, which justified frequently pardoning culprits on a large scale to secure harmony within the empire. Originally, the body politic was employed to admonish and criticize the throne, urging the emperor to align his interests with the well-being of his people, but in practice, it compromised the practice of justice.

--Dan Ernst

Furstenberg on Rabbinic Evidence for the Spread of Roman Legal Education

Yair Furstenberg has published open access in Law and History Review Rabbinic Evidence for the Spread of Roman Legal Education in the Provinces:

A long tradition of comparative scholarship has succeeded to establish the impact of Roman legal environment on rabbinic law making during the first two centuries CE, particularly in the field of family and status. Yet, the specific channels for acquiring this knowledge have hitherto remained a matter of conjecture. This paper argues that the rabbis were exposed to the contents of the current legal handbooks. Tractate Qiddushin (on betrothal) of the Mishnah includes two peculiar units: the first (1.1–5) regarding forms of acquisition and the second (3.12) on the status of newborns. Both units appear in key points in the tractate and exhibit striking structural and conceptual similarities to extended portions of the Roman school tradition regarding the laws of status, as handed down in Gaius’ Institutes and Pseudo-Ulpian's liber singularis regularum. It is therefore suggested that these units provide the earliest literary attestation already around the turn of the third century CE for the dissemination of Roman legal education among non-Roman provincials in the East, who sought to adjust their local practices into Roman-like legal structures.

--Dan Ernst

NCC Town Halls Announced

The National Constitution Center has announced several interesting online and in-person Town Halls, including:
    
The Future of Birthright Citizenship: A Constitutional Debate, on Thursday, April 24 at Noon ET

President Donald Trump’s executive order seeking to end birthright citizenship has reignited debates over the 14th Amendment and the meaning of citizenship in America. Join legal experts Amanda Frost of the University of Virginia School of Law, Kurt Lash of the University of Richmond School of Law, Ilan Wurman of the University of Minnesota Law School, and John Yoo of the University of California, Berkeley School of Law as they analyze the legal challenges surrounding birthright citizenship, explore the constitutional and historical arguments on all sides of this debate, and discuss its broader implications for immigration. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. 

Democracy in France and America With Justice Stephen Breyer and Christiane Taubira, on Thursday, May 15 at 6:30 p.m. ET

The Honorable Stephen G. Breyer, associate justice of the U.S. Supreme Court (ret.) and National Constitution Center honorary co-chair, joins Christiane Taubira, former French justice minister, for a conversation on democracy, the rule of law, and constitutional traditions from French and American perspectives. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. 

Executive Authority: Presidential Power From America’s Founding to Today, on Tuesday, June 3 at Noon ET

Legal scholars Gillian Metzger of Columbia Law School and Saikrishna Prakash of the University of Virginia School of Law examine the founders’ vision for the presidency, how presidential power has changed over time, and the key constitutional debates that have shaped the modern presidency. The discussion will also explore how the Trump presidency fits within this historical context and what it means for the future of presidential power. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.

The Story of the U.S. Constitution: Past and Present, on Monday, June 23 at 6:30 p.m. ET

This program is presented in partnership with the Sandra Day O’Connor Institute and the Organization of American Historians.  Akhil Reed Amar and David Blight of Yale University join National Constitution Center President Jeffrey Rosen for a sweeping conversation about the Constitution and the debates that have shaped America—from the founding era to today. They’ll examine transformative moments in American history and landmark Supreme Court decisions.

--Dan Ernst

Kim on Australia's Procedure Act of 1854

David Kim, of the Australian law firm Banki Haddock Fiora, has posted “A Turbid Admixture”: The Long Shadow of the Common Law Procedure Act 1854, which appeared in the Adelaide Law Review:

The innovations of the pre-judicature period continue to haunt us. In the 1850s, in response to agitation for procedural fusion, reforms were introduced to allow for the grafting of equitable remedies onto common law courts and vice versa. This well-intentioned blending of jurisdiction spawned two novel remedies that are with us to this day: equitable damages and the lesser known 'common law injunction'. This article explores the Australian jurisprudence that has coalesced around the common law injunction and surveys the difficult theoretical problems that come to the fore when attempting to define its nature and scope.

--Dan Ernst

Savarese on Parents' Habeas Suits in Late 19th-Century United States

Laura Savarese, Michigan State University, has posted The Origins of Family Rights and Family Regulation: A Dual Legal History, which is forthcoming in the Stanford Law Review:

The history of the state’s intrusions on the rights of marginalized parents has become central to today’s critical accounts of American family law and family courts, and rightly so. Missing from the conversation, however, is a full account of how those rights first entered the law, and how the state assumed its now-familiar, though often unfulfilled, obligation to afford due process to the parents and children it separates.

This Article is the first to locate that transformation in a now-forgotten wave of habeas litigation brought by parents seeking their children’s return from orphan asylums and juvenile reformatories—the institutions that comprised the nascent child welfare and juvenile justice systems in the late nineteenth century. Those conflicts are visible in archival sources and a set of state court cases that have not received systematic study. Drawing on those sources, this Article argues that modern understandings of the right to family integrity were forged through legal challenges to the state’s growing power to remove children from their parents, in the name of child welfare, from the Civil War through the Progressive Era. Parents, as habeas petitioners, pushed courts to recognize and enforce their rights to notice and an opportunity to be heard, to draw a distinction between child neglect and family poverty, and to affirm parents’ right to regain custody after they remedied the reasons for children’s removal—establishing the core legal principles that delimit the state’s power today.

Recapturing the story of resistance to the family regulation system, at its inception, offers insights for today’s efforts to transform or dismantle that system, and deepens our understanding of the genesis and function of constitutional family rights. Critically, recovering this line of cases provides a more complete account of the history and tradition in which substantive due process protections for family autonomy are rooted. This account also lends support to more ambitious conceptions of the right to family integrity, advocated today, as a tool for expanding legal protections against family separations and terminations of parental rights, as well as affirmative entitlements to state assistance for childrearing. At the same time, the records of parents’ legal challenges offer a warning about the limits of procedural rights and litigation as means of advancing parents and children’s interests, absent a more radical redistribution of public resources to meet families’ material needs.

--Dan Ernst

Fisher and Shapiro on Storytelling, Rulemaking and Agency Expertise

Elizabeth C. Fisher, University of Oxford Faculty of Law, and Sidney A. Shapiro, Wake Forest University School of Law, have posted Storytelling, Rulemaking, and the Expertise of Administrative Agencies.  The paper describes and categorizes comments from the records of twenty-five recent rulemakings by twenty agencies, as well as ten dockets from the years 1974-1992.

For ill or good, the world is full of stories. Given the political stories being used to deconstruct the administrative state, it is easy to be cynical about stories and to discourage their use. But humans are story telling animals. Administrative lawyers need to be cognizant of that fact, and craft their understanding of administrative competence considering it. In this groundbreaking survey of stories in rulemaking comments we show how many different types of commenters are telling stories for a variety of reasons. These stories differ in scale and focus, and in their value to the rulemaking processa fact that underscores that stories need to be evaluated. Given that stories are how humans structure reality, build social relations, and persuade each other this is inevitable. As is the way in which humans have developed the capacity to evaluate stories. But administrative lawyers have failed to pay attention to stories and thus have missed the opportunities to encourage a more enlightened approach to thinking about rulemaking and administrative expertise. Such an enlightened approach matters now more than ever.

--Dan Ernst

A Month of Blogging About We the Men

I have really enjoyed writing about We the Men during my month as a guest blogger.

Here are links to my posts, in case you missed them the first time:

We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality

Forgotten Women and Men’s Spontaneous Enlightenment 

Self-Contradictory Victory Announcements

The Unfinished Battle for the ERA 

My website has additional information about the book.  Follow me on Bluesky for more feminist energy in anti-feminist times.

Happy Women’s History Month!

Lupu Remembers Steinem at the HLR Banquet

Ira C. Lupu, George Washington University Law School, has posted Gloria Steinem at the Harvard Law Review Banquet, which appeared in the Green Bag:

In the Spring of 1971, Gloria Steinem became the first woman to be the keynote speaker at the prestigious annual banquet of the Harvard Law Review. At that time, as an editor of the Review, I played an instigating part in the process that led to this controversial invitation. I attended the Banquet, and I paid close attention to the speech and its aftermath. In 1998, I decided to memorialize that experience in this essay, which frames the event in its cultural and political context – the rise of feminism, the Vietnam War, and American student radicalism, among other phenomena. In her book My Life on the Road (2015), Ms. Steinem draws explicitly from details in the essay in describing her experience at the Banquet.

--Dan Ernst

Weekend Roundup

• Lukasz Korporwicz, associate professor in the Department of Roman Law and vice dean for research at the University of Lodz in Poland, will speak on “Sophisticated Legal Tradition? On the Relation Between Common, Canon and Civil Law Once Again” at 7 p.m. on April 3 in the Thunder Room in the Jack B. Kelley Student Center on West Texas A&M’s Canyon campus. 
  

• Hidetaka Hirota and Kevin Kenny will discuss the history of state immigration control and the first deportations of immigrants in “Receiving the Irish,” a YouTube Live presentation, sponsored by the Tenement Museum, on Monday, March 31,  6:30PM - 7:30PM ET.
  

• The testimony of Amanda Frost at the congressional hearing "'Subject to the Jurisdiction Thereof': Birthright Citizenship and the Fourteenth Amendment," on February 25, 2025 (SSRN).

• In the Berkeley Talks podcast series, "UC Berkeley Law Dean Erwin Chemerinsky and Brian Fitzpatrick, the Milton R. Underwood Chair in Free Enterprise at Vanderbilt Law School . . . debate the merits of originalism in constitutional interpretation."
  

• A report of a session at the American Judges Education Institute summit devoted to The Collective-Action Constitution by Neil Siegel, Duke Law School (ABA).

• "Restoring Truth and Sanity to American History" is an Executive Order issued on March 27 that instructs the Smithsonian to purge itself of "improper ideology" and directs the Secretary of the Interior to ensure that memorials and monuments within his department's jurisdiction do not "inappropriately disparage Americans past or living (including persons living in colonial times), and instead focus on the greatness of the achievements and progress of the American people." 
  

• Okay, then how about restoring Sojourner Truth and the greatness of her achievements?  An "episode of A New York Minute in History podcast commemorates Women’s History Month by uncovering the groundbreaking 1828 court case of Sojourner Truth, a self-emancipated Black woman who took on a white slave owner to free her young son from slavery in the South" (New York Almanack).

• Legal historians Michael Klarman, Jed Shugerman et al. discussed Trump v. United States at HLS recently (Harvard Crimson). 
  

• A notice of Cheryl Harris’s Mathew O. Tobriner Memorial Lecture, the keynote for the Racial Capitalism Symposium at UC Law San Francisco held on February 7 (UC Law SF).

• LHB Guest Blogger Jill Hasday is in conversation with June Carbone on Professor Hasday's book We the Men at Magers & Quinn Booksellers in Minneapolis on Monday, April 7, at 7pm CDT.

• 

  Florence E. Allen (LC)

  ICYMI: Clay Risen reminds us that before Mahmoud Khalil, there was Harry Bridges (Bulwark).  Also that Arnold, Fortas & Porter stood up to McCarthyism (Politico).  The United States approaches its "Andrew Jackson Moment" (The Conversation).  That oral history project for government employees who lost their jobs (WaPo).  A profile of federal judge Florence Allen (at right) (CNO). Ezekiel Gillespie, a 19th-century civil rights pioneer (Milwaukee Independent).

• Update: Legal historians of the administrative state will want to view the recording of the recent on-line symposium, How is Trump 2.0 Reshaping the Administrative State? convened by Penn's Neysun Mahboubi.  Participants include Columbia's Gillian Metzger, whose 2017 HLR Foreword compared today's "anti-administrativism" with that of the 1930s.

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

CFP: New Directions in the Legal History of the Civil War Era

[Via H-Law, we have the following CFP.  DRE.]

Call for Papers: 2025 Conference on the Civil War/Porter Fortune Symposium:

New Directions in the Legal History of the Civil War Era

The Center for Civil War Research and the History Department at the University of Mississippi seek papers for the 2025 Conference on the Civil War, to be held October 16-18, 2025, in Oxford, Mississippi.

The conference features a keynote address by Ariela Gross (UCLA) and a special roundtable with Cynthia Nicoletti (UVA),  Gautham Rao (American University), and Anne Twitty (Stanford University).

The mid-19th century saw a revolution not only in the written laws and constitutions that governed Americans, but in the ways in which Americans interacted with those laws and the people who administered them. The laws governing slavery and those emerging from it first tore the nation apart then posed significant challenges to its reconstruction. Americans likewise confronted severe legal questions as they prosecuted a cataclysmic conflict, one that brought the state and its armed forces into intimate contact with civilians of all stripes. Meanwhile, the changing ways in which Americans worked, moved, and understood their place in the world required fundamental reconsiderations of their relationships to government, capital, and one another–all of which necessarily involved the law.

This conference seeks to build on the work of historians who have begun critical re-evaluations of the legal history of the Civil War era. Papers may represent traditional legal histories, as well as military, social, and cultural histories demonstrating Americans’ encounters with the law. We welcome individual papers or full panel proposals exploring topics including, but not limited to:

• The law and slavery in the United States
• Efforts at or movements for legal and constitutional reform
• Women, gender, and the law
  
• Legal and political culture
• The laws of war
• Labor, capital, and the law
• The law and Reconstruction

Interested participants should submit a paper title, 250-word abstract, and one-page CV to civilwar@olemiss.edu by Friday, June 6, 2025. Panel proposals should include a CV and abstract for each participant; a commenter and/or chair is not required. The Center for Civil War Research offers stipends to offset costs for presenters lacking institutional travel support.

AHA Briefing: The Federal Civil Service

[We have the following announcement.  DRE]

The American Historical Association invites you to attend a Congressional Briefing offering historical perspectives on the federal civil service. The briefing will take place on Monday, April 7, at 9:00 a.m. ET in Rayburn House Office Building Room 2075. 

Panelists Joseph A. McCartin (Georgetown Univ.), Margaret Rung (Roosevelt Univ.), and Eric S. Yellin (Univ. of Richmond) will discuss how the federal government’s bureaucracy has evolved over time, including who has been eligible for federal employment, significant legislation concerning federal employment, processes of federal hiring and how they have changed over time, and the role of unions. The AHA's James Grossman will moderate.

The event is open to the public; no registration is required. A breakfast spread and coffee will be served. If you have any questions, please email brosenbaum@historians.org.

The AHA’s Congressional Briefings series seeks to provide Congressional staff members, journalists, and other members of the policy community with the historical context essential to understanding contemporary issues. The sessions are strictly nonpartisan and avoid advancing particular policy prescriptions or legislative agendas. Recordings of our recent briefings providing historical perspectives on are available on the AHA’s website.

Pfander and Zakowski on Non-Party Relief in the Early Republic

James E. Pfander and Mary Zakowski, Northwestern University Pritzker School of Law, have published Non-Party Protective Relief in the Early Republic: Judicial Power to Annul Letters Patent, which is forthcoming in the Northwestern University Law Review:

Much of the debate over the constitutionality of universal or non-party protective relief in the federal court system has focused on lessons drawn from historical practice.  But with its emphasis on injunctive relief, the literature has largely ignored forms of adjudication that arose outside the courts of equity and led to judgments and decrees affecting the rights of non-parties. As a result, the story of non-party protective relief has not yet been fully told.

This Article offers a more complete story, highlighting a range of proceedings in which federal courts issued judgments that settled a matter once and for all and operated on all the world. Some familiar examples include proceedings in admiralty, where a decree could settle title conclusively and operate on those who did not appear in the litigation.  Less familiar examples include naturalization judgments, which conferred the status of citizenship on an individual once and for all.  We focus here on yet a third example:  the power of federal courts, acting under the patent laws of the 1790s, to entertain individual suits to cancel or annul a patent for all purposes. Such cancellation proceedings, based on a practice that developed in England on the writ of scire facias, were understood to operate as a general matter and could confer benefits on artisans and manufacturers who did not appear in the litigation. Patent cancellation remains a part of the federal judicial role today.

History suggests, then, that federal courts were understood to have power, when so authorized by Congress, to issue decrees that settled matters conclusively and therefore conferred burdens or benefits on non-parties.  Over the nineteenth century, the patent cancellation power migrated to federal courts of equity, resulting in decrees that prohibited patent owners from asserting claims against non-parties. These early examples of non-party protection make it challenging to argue on historical grounds that Article III of the Constitution bars federal courts from granting such relief today.  In a brief concluding section, we suggest that assessments of non-party protective relief should focus instead on congressional authority; such a focus could help distinguish universal injunctions in general from the set-aside power conferred in section 706 of the Administrative Procedure Act.

--Dan Ernst

Ruskola on the Making of the Chinese Working Class

Teemu Ruskola, University of Pennsylvania Carey Law School, has posted The Making of The Chinese Working Class, which is forthcoming in the New Left Review.

This essay, forthcoming in the New Left Review, is an advance excerpt from a book entitled The Unmaking of the Chinese Working Class: The Global Limits of Capitalism, to be published by Verso Books in 2026. The title of the essay is a deliberate nod to E.P. Thompson’s classic The Making of the English Working Class. The English working class constituted the paradigmatic proletariat in the initial stages of industrial capitalism in the West. It provides an ideal lens for examining the emergence of another proletariat of global significance on the opposite edge of the Eurasian landmass, one that is emblematic of capitalism’s latest stage.

Thompson framed his analysis in terms of the Enclosure Movement, which expropriated peasants of their land and left them with no option but to sell their labor. In China, too, there is occurring a similar dispossession of peasantry that is sometimes described as a New Enclosure Movement. However, the two enclosure movements differ notably in their temporal and spatial scope.  First, processes that took place over a period of several centuries in England are being telescoped into just three decades in China.  Second, they are taking place in the opposite order:  the initial commodification of industrial labor in the 1990s was accompanied by a seemingly inexhaustible stream of migrant laborers into cities even without the large-scale commodification of rural land.  Why, then, dispossess a peasantry that has already submitted to capital voluntarily, i.e., under economic duress without the need to resort to forcible dislocation?  This essay, and the book of which it is a part, address this question by focusing on distinctive forms of ownership of rural and urban land in China—a legal distinction that has no precedent in Chinese history, Marxian thought, or Soviet praxis.

--Dan Ernst

The Unfinished Battle for the ERA

My new book, We the Men, concludes by exploring how Americans can learn from the past to change the future.  The long history of women’s struggles for equality in the United States makes clear that real progress has always required women to challenge prevailing certainties, advance uncomfortable demands, and confront powerful opponents.

I argue that America needs more conflict over women’s status rather than less.  Conflict can generate change.  Patiently awaiting men’s spontaneous enlightenment will not.

The last part of the book highlights some of the unwon battles that need fighting, or continued fighting, to push progress forward—now and over the long haul.  This unfinished reform agenda spans teaching, commemoration, political representation, legislation, litigation, and everyday life.

In this post, I will focus on the unfinished battle for the Equal Rights Amendment.  The required thirty-eight states have ratified the ERA, but the last three ratifications came decades after the expiration of the seven-year ratification deadline that Congress inserted into the 1972 joint resolution sending the ERA to the states. 

The crucial next step is to push Congress to embrace the ERA’s declaration that: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”  Federal lawmakers should either directly recognize the ERA as part of the Constitution, remove the ratification deadline, or—ideally—both. 

Such congressional endorsement would make it more difficult for the Supreme Court to resist the conclusion that the ERA’s ratification is complete.  The Court has never denied recognition to a constitutional amendment that Congress accepts.

Even so close to the finish line, fighting for the ERA remains arduous.  Continued opposition to the ERA in Congress fits within a long history of vehement resistance to expanding women’s rights and roles.  The stakes are high.

Most broadly, the ERA could help transform how powerful and ordinary Americans understand the relationship between women and the Constitution.  Generations of legal authorities have excluded women from the center of constitutional law.  Indeed, Justice Antonin Scalia argued in 2011 that the Constitution does not prohibit sex discrimination at all because: “Nobody ever thought that that’s what it meant.  Nobody ever voted for that.  If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”  Scalia added: “That’s what democracy is all about.”

This was never a compelling argument.  Men barred women from voting on both the original Constitution and the Fourteenth Amendment prohibiting states from denying “any person” “the equal protection of the laws.”   From that perspective, it is hard to see how abiding by what the men behind these constitutional provisions purportedly thought about sex discrimination would be a triumph of democratic legitimacy, rather than an importation of past injustice into the present.  But in any event, women are unquestionably not an afterthought to the ERA.  Adding that amendment to the Constitution would affirm women’s equal citizenship and women’s centrality to constitutional law.

Most practically, the ERA could help expand women’s rights and opportunities.  As We the Men recounts, ERA opponents have spent over a half century describing the amendment as simultaneously unnecessary and menacing.  The first claim has always depended on denying persistent sex discrimination and dismissing ongoing disparities.  The second line of attack has recently focused on arguing that the ERA would provide constitutional protection for abortion rights.  That latter argument has an ironic dimension: Abortion opponents ordinarily refuse to acknowledge any connections between abortion rights and sex equality.  But anti-abortion attacks on the ERA suggest the impact the amendment could have—eventually, if not necessarily with the current Supreme Court.  Embedding the ERA’s explicit prohibition on sex discrimination into the constitutional firmament would provide a new, sturdier foundation supporting feminist advocacy about constitutional rights.

— Jill Hasday