Barbas on Beauharnais

Samantha Barbas, University of Iowa College of Law, has posted The Story of Beauharnais v. Illinois, which is forthcoming in the Journal of Free Speech Law:

In 1952, the U.S. Supreme Court issued its landmark First Amendment decision in Beauharnais v. Illinois, upholding an Illinois hate speech law. Beauharnais, involving a white supremacist “hate group” leader in Chicago, was the Supreme Court’s first encounter with racist speech. The Illinois statute, enacted in 1917, was one of several hate speech or “group defamation” laws that existed in the United States during the first half of the twentieth century. Commentators believed that the Supreme Court’s approval of the Illinois statute would lead other jurisdictions to enact hate speech laws. Yet Beauharnais facilitated the demise of hate speech laws. This article tells the story of Beauharnais v. Illinois and explains why the Supreme Court’s ruling helped bring about the end of hate speech laws in America.

--Dan Ernst 

White's "Robert H. Jackson: A Life in Judgment"

G. Edward White,. UVA Law, has published Robert H. Jackson: A Life in Judgment (Oxford University Press):

Until he joined the U.S. government in 1934, Robert H. Jackson had been a lawyer in private practice in Upstate New York who was admitted to the bar without going to college and after completing only one year of law school. Once part of FDR's administration, Jackson became, in rapid succession, United States Solicitor General and United States Attorney General, where he successfully defended New Deal programs before the Supreme Court, including the legality of Lend Lease, which helped the U.S. give war supplies to England in exchange for grants of territory and harbors. Jackson played a central role in formulating the arguments justifying a number of initiatives on constitutional grounds and in drafting the policy statements that accompanied them. In 1941, FDR nominated him to be Associate Justice of the Supreme Court, on which he served until his death in 1954, only months after his adding his vote to the unanimous decision in Brown V. Board of Education.

It was a meteoric rise for someone from outside the elite, and essentially self-trained. That didn't stop Jackson from becoming one of the most influential and independent-minded judges of his day, unafraid to question the status quo and leave his mark on a number of landmark cases, including West Virginia State Board of Education v. Barnett, which guaranteed First Amendment rights by holding that students in public schools did not have to salute the flag or recite the Pledge of Allegiance. He dissented from the notorious decision in Korematsu v. U.S., which condoned the internment of Japanese-Americans during World War Two. To many, however, Jackson's most significant contribution was as chief U.S. prosecutor at the Nuremberg war trials following the war.

Drawing on Jackson's extensive personal papers in the Library of Congress and the Jackson Center, as well as a substantial oral history, G. Edward White's biography offers the first full-length portrait in decades of this fascinating and seminal figure.

--Dan Ernst

Donahue on Officers at Common Law

Nathaniel Donahue, Samuel I. Golieb Fellow at the New York University School of Law, has posted a terrific paper, Officers at Common Law, which is forthcoming in the Yale Law Journal:

The Framers of the federal Constitution said almost nothing about how subordinate officers would be held accountable. This Article provides one overlooked explanation for this longstanding puzzle. The Constitution was enacted against a well-defined jurisprudence that has largely fallen from view: a law of officers. When using the term “Officer” and its framework of “Duties,” the Constitution invoked a distinctive method of regulating state power, in which officers were personally responsible—and liable—for discharging duties defined by law. The Framers and Ratifiers of the Constitution expected that these common-law rules would fill the gap left by the document’s silence.

This Article weaves together the strands of statutory and common law that constituted and regulated the early American officer. This system of legal organization, drawn from longstanding English and colonial practice, empowered officers to create a decentralized governing apparatus that blurred the line between public and private. Its regime of harsh personal liability and individual empowerment impeded efforts to construct a top-down hierarchy by empowering and encouraging officers to resist orders from their superiors. As Americans developed a bureaucratic state over the nineteenth- and twentieth centuries, judges and lawmakers replaced this officer-based paradigm of governance with a system of administrative law that was more conducive to the modern state.

The legal regime of early American officeholding is inconsistent with many originalist justifications of the “unitary executive theory,” which assert that the Constitution relies on a combination of managerial control and presidential elections to discipline the state. Because the traditional law of officers centered officers’ independent obligations to law rather than to the executive hierarchy, it actively frustrated efforts to construct the command-and-control executive branch that unitarists believe the Constitution requires. The unitarists implicitly impose a theory of the state that developed as the early American law of officers was fading from view. 

--Dan Ernst 

Smith on Petitioning in 18th-Century Russia

Alison K. Smith, University of Toronto, has published “To Each Their Grievance Is Bitter and Unbearable”: Petitions, Autocracy, and the Rule of Law in Eighteenth-Century Russia in Law and History Review:

Over the course of the eighteenth century, Russian rulers released dozens of decrees about petitions. First, the decrees regulated the format of petitions, emphasizing their formulaic nature and moving them away from the personal appeals with supplication and abasement that were present in earlier centuries. These decrees recognized that petitions were essential to the administrative functioning of the imperial Russian state but saw them as akin to forms or applications. Second, the decrees stated firmly that petitioners should not approach the ruler directly. In part, these decrees reflect the rulers’ irritation at being endlessly bothered by personal requests, but Russia’s rulers also gave a more serious justification for the ban on personal appeals: they had established the rule of law, which meant that their subjects did not need to bother them personally and instead should clearly know other authorities—courts, governors—to address for aid. While efforts to change the format of petitions largely succeeded, efforts to curtail petitions directly to the ruler largely failed. That failure likely reflects several factors: inefficiencies in the judicial or administrative system, contradictory laws that still made space for petitions because they were useful, and because they held the promise of getting help quickly.

--Dan Ernst 

Balkin & Levinson, "Casebooks, Canons, and Constitutional Memory"

Jack M. Balkin (Yale Law School) and Sanford Levinson (University of Texas Law School) have posted "Casebooks, Canons, and Constitutional Memory." The abstract:

Why edit a constitutional law casebook? One might want to shape how professors teach the subject and how students learn it. But the influence of casebook editors is limited. Most students at most law schools will never practice constitutional law, and those that do probably deal with subjects not in the standard introductory course.

Editing a casebook involves the construction of a canon. The canon in literature is organized around  great works of excellence. By contrast, the canon in constitutional casebooks does not reflect the best opinions ever written; instead it reflects generations of political and legal struggles over the Constitution.

There are three kinds of canons in constitutional law, and in constitutional law casebooks: (1) the pedagogical canon of materials that students need to know to be well-trained lawyers; (2) the cultural literacy canon of materials that citizens need to know to understand their constitutional system; and (3) the constitutional theory canon of materials that are grist for the mill of serious academic discussion. Each of these canons has a politics, and different casebooks may align themselves with different political and legal visions and movements.

Casebooks are also sites of collective memory. A casebook foregrounds what teachers and students are likely to focus on and remember. What is left out of teaching materials is more likely to be forgotten. Hence constitutional law casebook authors are almost inevitably memory entrepreneurs, who seek to get people to remember certain things or remember them differently. But casebook editors are hardly all-powerful memory entrepreneurs. Authors must work with their coauthors to decide what materials to include and delete in successive editions. Casebook authors face serious constraints from publishers. Publishers demand frequent new editions to undercut sales of used casebooks; and they want casebooks to be ever shorter and simpler to understand.

Perhaps most important, casebook authors feel obliged to cover contemporary issues in constitutional law. Those issues are not in their control. They are shaped by the continuous interaction and collision between the political branches and the courts, and especially the United States Supreme Court. In this way the Supreme Court exercises vast control over the content and organization of constitutional law casebooks. This creates important problems of constitutional memory. If the Supreme Court overrules a line of cases, those cases are likely to be flushed down the memory hole unless casebook editors are willing to sacrifice other valued content.

The Supreme Court constantly destroys existing canons of constitutional law and reconstitutes them through its choice of cases to decide. Casebook authors must carefully consider how much of this constant churning and change is noise and how much is genuinely important and lasting for understanding the U.S. Constitution. This makes casebook authors' limited choices about what to remember especially important.

At most, by placing certain materials before professors and students,  casebook authors can provide opportunities to recall and absorb what is most important about our constitutional traditions. Yet what others do with those materials--and those memories--is ultimately beyond casebook authors' control. 

Read on here.

 

--Karen Tani