Monday, October 28, 2024

CFP: LCH 2025

[We have the following announcement from Simon Stern, President of the Association for the Study of Law, Culture & the Humanities.  DRE.]

We are excited to announce that we are now accepting submissions for the Twenty-Seventh Annual Conference of the Association for the Study of Law, Culture, and the Humanities. The conference will be held in person (with some online components) on June 17-18, 2025 at Georgetown Law in Washington, D.C. This year's theme is "Speech Matters."  You can find the call for papers on our website or view the PDF version.

We are also accepting applications for our annual Graduate Student Workshop, which will take place the day before the conference on June 16, 2025. Information on how to apply for the workshop can be found in the PDF or on our website here.

Rechtsgeschichte-Legal History 31

[We have the following announcement from our friends at the Max Planck Institute for Legal History and Legal Theory.  DRE]

The recent issue of our Institute’s journal Rechtsgeschichte – Legal History (Rg) presents high-level research contributions and candid reviews of books on topics that are relevant for the field of legal history, in Germany and worldwide.

Three essays are dedicated to the legal history of slavery in the early modern and modern periods: Carlo Bersani traces the European legal discourse on servi and personae (16th–18th century). Matilde Cazzola looks at the efforts to abolish slavery in British Caribbean, and Tamar Herzog analyses some aspects of the historiography of the legal history of slavery, a field so far dominated by Atlantic history.

The way in which jurists translated traditional knowledge bases for their present time in order to get a grasp on colonial realities in 16th-century Latin America is analysed in Christiane Birr’s Research contribution on Gregorio López. It shows how López’ ubiquitously used edition (including glossary) of the medieval Siete Partidas, by reverting to seemingly old knowledge, resulted in answers to new problems in the 16th-century Iberian empires. A set of entirely different, long-neglected sources of law is highlighted by Paolo Revilla Orias and Pablo Quisbert Condori. They offer an introduction to the local archives and the normative knowledge of indigenous communities in the ‘Plurinational State of Bolivia’.

Writing about the early modern Imperial Aulic Council (Reichshofrat), Tobias Schenk asks to what extent our view as legal historians is still influenced by the paradigm of statehood and makes the case for research along the lines of praxeology and the history of knowledge. Finally, Andrew Harding presents a case study on the transfer of rights under common law, the Six Widows' case, which dates back to the early 20th century in Singapore.

Like the other segments, the Critique section and its numerous reviews of recent publications reflect the mpilhlt's research areas. The assessed volumes cover topics such as imperial and colonial legal history, the history of codification and constitutional history, the history of international law and of EU law, and the connection between the theory and the history of law.

Two Marginalia conclude this volume. Paul Kahn offers a critical commentary on a chapter from The Cambridge Legal History of Latin American Law in Global Perspective, which was published this year; and Erk Volkmar Heyen writes about stairs as settings for gender-specific glorification and condemnation, opening the reader's eye to legal aesthetics. His contribution settled the question of what motif we would use for the image spread of the print issue: stairs of all shapes and sizes, reflecting a great diversity of epochs and world regions.

Rechtsgeschichte--Legal History 32 is available in print from the Vittorio Klostermann publishing house, and online in Open Access via the journal's website.

Saturday, October 26, 2024

Weekend Roundup

  • Dylan C. Penningroth (UC Berkeley) recommends "Seven Essential Texts That Show the Human Side of Black Legal History" (Literary Hub).   
  • Earlier this week, Judge Amul R. Thapar of the Sixth Circuit delivered "Why Originalist Courts Need Originalist Classrooms,” the 17th Joseph Story Distinguished Lecture of the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.  Judge Thapar faults the "overwhelmingly anti-originalist" legal academe for teaching "widely accepted originalist methods through a distorted, uncharitable, and often inaccurate lens.  This means that most students never engage with originalism in a serious way during their law school careers, much less learn how to do originalism in practice.”  He proposes solutions.
  • Cynthia Neville, Professor Emeritus at Dalhousie University, Halifax, Nova Scotia, will give the Annual Lecture of the Stair Society in the Mackenzie Building, Old Assembly Close, Edinburgh on Saturday 16 November 2024.  Her title is “March Law as Auld Law in the Late Medieval and Early Modern Scottish Legal Traditions.”
  • Along similar lines, James Kloppenberg (Harvard) explains to readers of Commonweal "Why History Matters Now" (subtitle: "A Commonweal Catholic on the mess made by Supreme Court Catholics").  
  • A notice of that Penn conference on the political and legal history of voting (Daily Pennsylvanian).
  • We spotted a notice for a three-year postdoc at Radboud University in the Netherlands on the project "The Social Life of Early Medieval Normative Texts," headed by Dr Sven Meeder, who "aims to describe and contextualise the spread of social norms as articulated in specific combinations of canons in a bottom-up approach starting from the vast corpus of manuscript witnesses of canonical collections in every shape and form (4th-12th centuries)" (I Am EXPAT).
  • The Center for International and Comparative Law at the University of Michigan will hold a Junior Scholars Conference on April 25-26, 2025, in Ann Arbor, MI.  The deadline for submitting abstracts is January 5, 2025. The Center seeks submissions from pre-tenure track faculty, as well as Ph.D. and S.J.D. candidates, in law and related fields. 
  • From History News Network: Richard R. John (Columbia University) on "The Other Sherman’s March: How the younger brother of the famous general set out to destroy the scourge of monopoly power." 

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

Friday, October 25, 2024

LDF's Civil Rights Legal Archives

[We reproduce part of the October 16 announcement by the Legal Defense Fund of its launch of a digitized collection of its archives.  We've added a link to our earlier post on a related digital collection of the Library of Congress.  DRE.]

Today, the Legal Defense Fund (LDF)’s Thurgood Marshall Institute announced the launch of Recollection: A Civil Rights Legal Archives, a first-of-its kind, searchable archival collection of oral histories, legal briefs, press releases, and correspondence related to more than 6,000 cases the organization has litigated since its founding. This effort is the culmination of five years of work by LDF’s dedicated team of archivists.

Recollection will give litigators, advocates, researchers, students, and the general public insight into eight decades of records on history-making work in educational equity, political participation, economic justice, and criminal justice. This archival website is a “living” resource that will be continuously updated to include newly digitized materials, including oral histories and editorial content that highlights LDF’s critical work to advance racial justice in the United States.***

Today’s announcement comes after a major portion of LDF’s early records were recently made available online for the first time through the Library of Congress in September 2024. About 80% of the approximately 80,000 items have been digitized thus far, resulting in approximately 210,300 images in the digital collection. The digitization significantly expanded research access to primary source materials for scholars and students studying the civil rights movement.

Thursday, October 24, 2024

Lyons on the Law of Nations and Diplomacy in the American Revolution

Published online open access in Law and History Review: The Law of Nations in the Diplomacy of the American Revolution by Benjamin C. Lyons.

Historians have long known that leaders of the American Revolution looked to the law of nations for insight into the rights and obligations of independent states. In so doing, Americans relied largely on the writings of European legal theorists, such as Hugo Grotius and Emerich de Vattel, whose treatises on the law of nations are regarded today as having laid the foundations of international law. As this article demonstrates, however, early modern statesmen did not base their conduct on such treatises, but on a customary law of nations that they derived from precedent and the text of earlier treaties. This article elucidates the distinction between the customary and theoretical branches of the law of nations. It then goes on to examine the law of nations’ impact on revolutionary-era diplomacy, drawing particular attention to a series of wartime negotiations over rights to the Mississippi River. As the article shows, most American emissaries lacked experience with the customary laws of diplomacy and struggled to use that law effectively in their negotiations. The most serious consequences were averted due in part to French legal advice, and because one American, John Jay, acquired enough competence in customary law to guide his colleagues toward an effective negotiation of peace.

--Dan Ernst

State of the Field of State Constitutional Studies

Today, at 2:30 EST, “the State Constitutions Lab and the Brennan Center for Justice will host a seminar discussion about the “State of the Field of State Constitutional Studies” that will center on past and current scholarly work, future directions and areas of research, and new methodological approaches.”  Participants include the historian Jane Manners, Jessica Roney, and Robinson Woodward-Burns.  Register here.  (H/t: H-Law).

--Dan Ernst

ASLH 2024

Starting today, your Legal History Bloggers will be in San Francisco at the annual meeting of the American Society for Legal History, for which Karen served as co-chair of the Program Committee.  This year, we appear on the same panel, Foundations of the Modern Administrative State, at 3:00 tomorrow.  Karen will chair, and I will comment.  The papers and their authors are:

A Presidency of Statutes: Gilded Age Reform and the Roots of the Modern Executive (1868-1921)
Andrea Scoceria Katz, Washington University in St. Louis School of Law

The Progressive Origins of Centralized Administrative Review
Edgar Melgar, Yale Law School

The Lost English Roots of Notice-and-Comment Rulemaking
Rephael Stern, Harvard University/Harvard Law School

The Origins of the Major Questions Doctrine
Rachel Rothschild, University of Michigan Law

As in the past, we welcome otherwise unsolicited reports of sessions at the meeting, and we expect to post on the prizes announced there after the meeting concludes.

--Dan Ernst

Wednesday, October 23, 2024

Robertson's "Harlem in Disorder"

Stephen Robertson, George Mason University has published Harlem in Disorder: A Spatial History of How Racial Violence Changed in 1935, a digital monograph that the Stanford University Press released earlier this year. 

The violence that spread across Harlem on the night of March 19, 1935 was the first large-scale racial disorder in the United States in more than a decade and the first occurrence in the nation’s leading Black neighborhood. However, as many observers pointed out, the events were “not a race riot” of the kind that had marked the decades after the Civil War. Racial violence took a new form in 1935.

Through a granular analysis of those events and the mapping of their locations, Harlem in Disorder reveals that Harlem’s residents participated in a complex new mix of violence that was a multifaceted challenge to white economic and political power. Tracing the legal and government investigations that followed, this project highlights how that violence came to be distorted, diminished, and marginalized by the concern of white authorities to maintain the racial order, and by the unwillingness of Harlem's Black leaders and their white allies to embrace fully such direct forms of protest.

Focused on capturing rather than simplifying the complexity of the new form of racial violence, Harlem in Disorder is a multi-layered, hyperlinked narrative that connects different scales of analysis: individual events, aggregated patterns, and a chronological narrative. Its structure foregrounds individual events to counter how data can dehumanize the past, and to make transparent the interpretations involved in the creation of data from uncertain and ambiguous sources.

Here are some encomia:

Harlem in Disorder is a remarkable achievement. It embodies the promise of digital humanities, creating a deeply immersive and analytically rich history of a milestone event in the history of New York City and 1930s America. Robertson achieves an enviable balance by bringing clarity to the 1935 Harlem Riot without diminishing the complexity of the motives of its participants, officials, and commentators. All future works on American collective violence and urban unrest will need to take into account this book’s findings and Robertson’s exemplary scholarship.” W. Fitzhugh Brundage, University of North Carolina

Harlem in Disorder gives new meaning to the idea of a deep dive. The work is a model for anyone planning to do a digital history project, and a powerful answer for those who still wonder what value digital history has.” Elizabeth Dale, University of Florida

Harlem in Disorder is a landmark in digital scholarship. Integrating remarkable research, innovative strategies, and compelling narrative, this work demonstrates new dimensions of historical understanding. Stephen Robertson portrays individuals and their complex humanity in a way never before possible.” Edward Ayers, Recipient of the National Humanities Medal

Harlem in Disorder evenhandedly unfolds the events of March 1935 in half-hour segments, allowing us to envision what actually occurred. Robertson comprehensively reconstructs the disorder and its later representations in the media, courts, investigations, and culture—an unprecedented accomplishment.” Amanda I. Seligman, University of Wisconsin, Milwaukee

As Bridget Laramie Kelly's review in the Journal of Social History makes clear, the book joins a debate on "the utility of terms such as riot, uprising, protest, revolution, and disorder."

--Dan Ernst

Tuesday, October 22, 2024

AHA Katz prize to Yannakakis for "Since Time Immemorial"

The American Historical Association has announced its 2024 Prize Winners, and we were pleased to see legal historian Yanna Yannakakis (Emory University) named as winner of the Friedrich Katz Prize in Latin American and Caribbean history for Since Time Immemorial: Native Custom and Law in Colonial Mexico (Duke University Press, 2023). 

Congratulations to Professor Yannakakis!

-- Karen Tani

The Pre-Publication Gauntlet

Drafting a book manuscript is daunting! I thought that, after I’d located and collected sources, organized my notes, crystalized my argument, and put together the narrative, the heavy lifting would be done. It turns out that wasn’t exactly right. The heaviest lifting was done, but I still needed to get through the pre-publication gauntlet.

This post covers the plethora of tasks that need to be completed before the book can go to press. If you’re writing your first book (or contemplating doing so!), you’ve likely heard about many of these steps. I hope this post helps you get through the list more easily.

Acknowledgments

Every book has an acknowledgments section, even if not everyone reads them. (I love reviewing acknowledgments, but even I’ll concede that many readers skip past those pages.) Crafting the acknowledgements ended up being one of my favorite parts of the book writing process. It gave me a chance to reflect on the many people who had made Family Matters possible, from my advisors during the PhD program, to the archivists who tracked down documents, to the friends and family members who supported me throughout the process.

 I hope that I managed to convey my sincere gratitude to everyone involved in making my book a reality However, it’s entirely likely that I missed some names! I regret leaving the acknowledgments at the end. If I had to do it over again, I would have kept a running list of people who helped me with the book as I was researching and writing it. That way, I could be sure I hadn’t inadvertently left anyone out. 

 Images

I should have kept a running list of potential images too! Images can make a book stand out. However, securing the rights to print them can be a challenge. Even if a repository has an image, they do not necessarily have the copyright from the photographer.

That means securing image rights can require some sleuthing. Let me give you an example. A few months before my manuscript was due, I contacted the New York Times in hopes of licensing a photograph that had appeared in their pages in 1991. They had the image, but not the rights. My efforts to track down the photographer, Donna Binder, stalled, until I saw Sarah Schulman’s recently published book on ACT-UP. The notes mentioned an oral history interview with Binder! I didn’t know Shulman, but I emailed her anyway, asking if she would please pass along my information. She kindly did—and Binder agreed to license the image, which appears on page 207 of Family Matters.

 Although it took weeks to track down that image, I was very fortunate to have a lead on the photographer at all. In my research, I came across quite a few snapshots from the 1950s and 1960s that perfectly illustrated my chapters…but no one at the archives knew who had taken the photographs. As a result, I could not secure permission to print them in the book.

 Obtaining the right to publish an image was one obstacle. Paying for the licenses was another. I ultimately had to spend several thousand dollars to reproduce and license the photographs in the book. I was able to use funds from a William Nelson Cromwell Foundation Fellowship to cover some of the costs—which is yet another reason to apply for these grants! Although I spent thousands on images, the bill could have been much higher. I was quite fortunate to publish Family Matters with Cambridge University Press for many reasons, one of which was that they have an agreement with Getty Images. That allowed me to include any of the photographs in the Getty database without paying them a license fee.

Indexing

Images were not the only cost associated with publishing the book—indexing was another. Many authors index their own books, but I wasn’t familiar with the process. I therefore decided to hire a professional—and was very glad I did. My indexer, Derek Gottlieb, did a fantastic job. I might have been able to create a workable index, but he identified entries that I would never have thought to include. The index he created was much more comprehensive, and therefore much more useful to users, than anything I would have done myself.

Page Proofs

The indexing happened around the same time as the copy edits. A few months later, I received the page proofs. By that time, I was exhausted. I’d been working on the book for years, had just submitted my tenure packet, and was teaching a new course. But the manuscript needed to be proofread.

Thankfully, I had a team of students to help me get through this final task. Once I knew when the page proofs would come in, I contacted my Associate Dean for Research and Academic Programs. I asked for permission to hire additional research assistants for the limited purpose of proofreading the book. I’m so very grateful he agreed. At least two students read each chapter, and while they worked, I reviewed each chapter twice. They all found errors the others had missed. They also found several typos that I overlooked.

By the time the students and I reviewed the page proofs, multiple editors had reviewed the manuscript several times, and a professional copyeditor had proofed the entire book. And yet…we still identified hundreds of typos and formatting errors in the manuscript. I wish I had caught all of those mistakes earlier, but I am really glad we found them before the book went to print. (I am still very nervous that a few errors got through. If you see any typos in Family Matters, please don’t tell me!)

* * *

All book authors have to get through the pre-publication gauntlet. In my next and final post, I’ll talk about another challenge that all writers face: deciding which stories to include and which to leave on the cutting room floor.

Two AHA book prizes to Penningroth for "Before the Movement"

The American Historical Association has announced its 2024 Prize Winners, and we were pleased to see that legal historian Dylan C. Penningroth (University of California, Berkeley) was a two-time winner. 

Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023) won the Beveridge Family Prize in the history of the US, Latin America, or Canada since 1492 and also the Littleton-Griswold Prize in US Law and Society.

 Congratulations to Professor Penningroth!

-- Karen Tani

Monday, October 21, 2024

A Podcast on Colonialism and Its Normative Systems

We learned from Dr. Raquel Sirotti, a postdoctoral researcher in the "Historical Regimes of Normativity" department at the Max Planck Institute for Legal History and Legal Theory in Frankfurt, of the launch of a project she and her research group has developed. Tramas Coloniais is a seven-episode documentary podcast in Portuguese, about the history of colonialism in Africa and its normative systems.  Episodes are being released weekly until November 20th. The project has also created a website with written and audio sources and a bibliography for each episode.  The Spotify link for the first episode is here.

--Dan Ernst

The Slavery, Law and Power Project

[We recently noticed the project on Slavery, Law and Power in the British Empire and Early America at the University of Maryland, created with the support of the National Archives and the American Society for Legal History.  Here is its description.  DRE.]

SLP (Slavery, Law, and Power) is a project dedicated to bringing the many disparate sources that help to explain the long history of slavery and its connection to struggles over power in early America, particularly in the colonies that would become the United States. Going back to the early English Empire, this project traces the rise of the slave trade along with the parallel struggles between monarchical power and early democratic institutions and ideals. We are creating a curated set of documents that help researchers and students to understand the background to the fierce struggles over both slavery and power during the American Revolution, when questions of monarchical power, consent to government, and hereditary slavery were all fiercely debated. After America separated from Britain, the United States was still deeply influenced by this long history, especially up to the Civil War. The colonial legacies of these debates continued to affect the course of politics, law, and justice in American society as a whole.

America’s current struggles over authoritarianism and democracy, over racism and social justice, have long roots. Whereas most historians began their explorations of those roots with the American Revolution and the Declaration of Independence, or in some cases with individual colonies’ discrete history with regard to slavery or democracy, this project aims to help scholars access that longer history within the context of the larger power structure of the British Empire. The Slavery, Law, and Power (SLP) project focuses on primary sources that expose the debates and struggles over slavery and power in the early modern British Empire and in the new United States. At present many of these sources are buried in archives–in difficult old handwriting–and scattered across institutions, many geographically remote from each other. When some of these materials are accessible via scanned databases, they are often behind a cascade of different paywalls.  It is thus difficult for scholars to see how the structures of power connected, or to see how those imperial structures in many ways promoted not only authoritarian governance, but also slavery.

Under royal patronage, slavery, and the slave trade (and Britain’s role in it) expanded exponentially across its empire on the African coast and in the Americas (even when “free trade” in slaves was permitted in slaves after 1698, that trade was protected at great expense by the Royal Navy). At the same time this period marked the birth of what we now call democratic principles and legal practices. How these connect is a crucial and difficult question that for too long we have been trying to answer without sufficient access to the evidence that helps us to see how structures of governance interacted with the polices, that helps us understand individual actions without a broader context.

Piecing together these struggles over policies and practices requires that many of the original sources be put in conversation.  But these sources are so difficult to access that most scholars have consulted only fragments of this larger record. SLP seeks to enable historians, political theorists and scientists, and scholars in African American, American, and British studies to access materials that reveal how power and law, censorship and propaganda, political theory and religion, all influenced and connected to the development of racial chattel slavery–and its eventual demise–in the British Empire and the United States.

Saturday, October 19, 2024

Weekend Roundup

  • The Roots of Reality podcast ("[a] podcast by historian Ben Baumann that uses history from the formation of the universe to the present, illustrating how our world came to be") has posted an episode on "Treason According to the Founding Fathers," featuring Carlton Larson.
  • Catherine Kelly and Gwen Seabourne, University of Bristol Law School, have been elected as Fellows of the Royal Historical Society. 
  • President Biden has appointed Justin Driver, the Robert R. Slaughter Professor of Law, Yale Law School, to the Permanent Committee for the Oliver Wendell Holmes Devise (YLS).
  • "Columbia Law School marked the 70th anniversary of Brown v. Board of Education with a discussion of the civil rights record of President Dwight D. Eisenhower, whose appointment of Chief Justice Earl Warren in 1953 paved the way for the decision holding school segregation unconstitutional."  Jeremy Kessler discussed Eisenhower's first steps to integrate the army at the end of World War II--at the battalion but not the platoon level (Columbia Law).
  • A notice of the Program in Politics, Law and Social Thought at Rice University, the brainchild of former ASLH president Harold Hyman.
  • A recording of that National Constitution Center book event in which Kenneth Mack interviewed David Greenberg on his biography of John Lewis is now up on the NCC's YouTube channel. 
  • Mary Ziegler (UC Davis) spoke with NPR's Fresh Air this week about "where . . . things stand with reproductive rights as we head into the election."
  • My former and present colleagues Mark Tushnet and Louis Michael Seidman have a podcast, "Supreme Betrayal:  How the Supreme Court and Constitutional Law Have Failed America."  The first episode is downloadable from Apple and Spotify.  DRE. 
  • The Center for Constitutional Studies at Utah Valley University also has a new podcast, This Constitution.  The first episode is “Above the Law? Executive Privilege and Presidential Immunity.”
  • ICYMI: T.F.T. Plucknett, in 1941, on why the London School of Economics should have its own publications program.  Eric Segall on Originalism and the Emperor's New Clothes (Dorf on Law).
    What the history of blasphemy laws in the US can teach us today (The Conversation).

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

Friday, October 18, 2024

Kexel Chabot on Falsifying the Unitary Executive

Christine Kexel Chabot, Marquette University Law School, has posted Rejecting the Unitary Executive:

George Washington (NYPL)
Critics have dismissed originalism as an empty methodology incapable of resolving our most important constitutional disputes. The debate over the unitary executive has proved particularly difficult to resolve as a matter of original public meaning.  While unitary scholars claim that Article II grants the President an indefeasible power to remove all subordinates at will, their interpretation rests on minimal text and conflicts with significant historical evidence. The Supreme Court circumvented this impasse when it adopted a strong unitary interpretation of Article II in Trump v. United States.

This Article develops a new methodological framework to address the underlying disconnect between ongoing historical disputes over the unitary executive and original public meaning’s claims to a determinate understanding of the Constitution. Leading originalists have staked their claims to determinacy on empirical, fact-based assertions of historical consensus on the Constitution’s meaning. My framework responds to these empirical claims on their own terms. It requires unitary theorists who assert historical consensus to measure their claims against the entire historical record including evidence that would render these claims false. Under my approach, for example, a theory asserting an absolute claim that all that swans are white cannot withstand observations of swans that are black. A theory of historical consensus that Article II empowered the President to remove all subordinates at will likewise cannot withstand reliable historical counterevidence of restrictions on the President’s removal power.

 While the supposedly competing evidence relied on by unitary executive theorists may show an unrestricted removal power over some subordinate officers, this evidence does not rule out tenure protection for other subordinate executive officers. It aligns just as well with the unitary executive’s theoretical alternative: a pluralist understanding in which Congress has discretion whether or not to restrict the President’s removal power. The framework developed by this Article makes clear what originalism’s underdetermined methodological framework has hidden from plain sight. The Founding generation rejected the unitary executive and not today’s pluralistic system of congressional discretion.

--Dan Ernst

Thursday, October 17, 2024

Using Oral Histories

In my last post, I covered how I went about collecting oral histories. In this one, I’ll discuss how I went about using them in Family Matters. What I learned was that oral history interviews provided so many more benefits than I expected when I started collecting them!

I initially began taking oral history interviews to fill in gaps in the historical record. Even though I was writing about the 1980s and 1990s, and therefore had a large number of written sources from which to draw, I often had questions about what happened, when, and why. Oral histories allowed me to get the answers I needed. For example, the Village Voice began offering domestic partner benefits to its employees in 1982. Its announcement generated a great deal of attention, spreading the concept and encouraging other companies to follow suit. But what led the Village Voice to make this change? To find out, I interviewed Jeff Weinstein, who was integral to making the program possible. He told me that he first began thinking about domestic partnership benefits in the early 1970s, but dismissed the notion as an impossible dream. Then, in 1979, he learned that the Village Voice provided health insurance to his straight colleagues’ unmarried partners. He reasoned that, if the Village Voice was willing to extend benefits to heterosexual domestic partners, then it might consider doing the same for their queer employees. He raised the issue with his union, which put it on the agenda during the next set of contract negotiations.

I quickly came to appreciate that the interviewees did not just fill in the missing pieces—they also provided details that enriched the story. When Weinstein told me about the union negotiations, he gave colorful commentary that brought the events to life. He described his appearance at the time—women’s clothing, long hair, and a beard—which he termed gender fuck drag.” Other interviewees volunteered details that I had not known to ask about, but which deepened the narrative. For example, I interviewed several researchers whose studies became crucial to lesbian mother custody lawsuits. One of them, Ellen Lewin, explained that she began her research after hearing about a lesbian mother’s custody battle. She did not just cite the case as a motivating factor—she told me that she undertook the work “with the fantasy that [she] would be called upon to be an expert witness in some of these cases.” That language conveyed just how personally invested she was in the legal issues her research implicated.

 As this indicates, what made the oral histories so useful was not just what the interviewees said—it was how they said it. Their word choices, tone of voice, and inflection all communicated valuable information. When I spoke to Tom Brougham, who became active in the gay liberation movement in the 1970s, his voice broke as he reflected on the changes he had seen in his lifetime. He had never expected to see large swaths of American society come to accept same-sex sexuality. I also interviewed Judy Shepard, who became a prominent advocate for hate crimes laws after her son was brutally murdered for being gay. In the wake of the news reports on the attack, parents of gays and lesbians reached out to her to ask how she had been able to accept her son’s sexual orientation. I could hear the irritation and anger in her voice as she wondered aloud how any parent could imagine rejecting their child. The emotion and tones that interviewees used all added to the substance of what they told me, conveying separate—and equally important—information.

Oral history interviews had several other benefits. One of them was that they corrected historical misstatements. Simply because documents consistently tell one story does not mean that it is true! To give just one example, the fourth chapter of Family Matters discusses states’ efforts to ban same-sex couples from adopting or fostering children. In 1985, New Hampshire became embroiled in a debate on this issue after the state’s Division of Children, Youth, and Families (DCYF) licensed an openly gay foster parent. Newspaper accounts indicated that DCYF tried to quell public outcry by adopting a policy preventing gays and lesbians from serving as foster parents, but that the legislature considered this insufficient and therefore enacted a statutory ban. When I spoke to the director of DCYF at the time, David Bundy, he told me that this account was far from accurate. The policy his agency adopted did not in fact ban queer foster parents, because child welfare experts believed sexual orientation was irrelevant to parenting ability. DCYF’s leadership was so adamant on this point that, after the legislature stepped in, the agency did its best to circumvent the law! The statute prohibited placements in homes with homosexual adults, so social workers simply did not ask prospective foster parents about their sexual orientation. Bundy summarized the situation with by explaining: “We came up with ‘don’t ask, don’t tell’ way before Clinton.”

 In addition to correcting the historical record, some of the interviews corrected my personal errors. Family Matters focuses on developments at the state and local levels, which meant I often had to figure out the relationships between legislators, committees, and agencies. I did my best, but sometimes I just got it wrong! Speaking to the people involved allowed me to fix my mistakes before I submitted the manuscript for publication.

Collecting oral histories is time consuming, but incredibly valuable. Indeed, I am far from the only twentieth century historian to comment on the utility of these sources. (Margot Canaday has a particularly good discussion of oral history sources in her recent work, Queer Career: Sexuality and Work in Modern America.)  I realize not every historian has the option of taking and incorporating oral histories. However, if it’s a possibility, I strongly recommend you take advantage of the opportunity!

 I’ve now had a chance to share with you both the arguments and methods of Family Matters. In my next post, I’ll move from drafting the manuscript to getting it through the publication process.

Griffin, "History vs. Originalism: The Bill Comes Due"

Stephen M. Griffin (Tulane University Law School) has posted "History vs. Originalism: The Bill Comes Due," which is forthcoming in Constitutional Commentary. The abstract:

This is a review essay of three highly significant recently published books concerning constitutional history, the controversy over originalism, and constitutional interpretation.  The books are: Jack Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation; Jonathan Gienapp, Against Constitutional Originalism: A Historical Critique; and Mark Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War.

The views of historians on how to best use historical evidence to interpret the Constitution have long taken a back seat in the debates of legal scholars.  I argue that this will no longer be the case once the legal academy has absorbed the lessons of these books.  Historians have finally weighed in and constitutional scholarship will be better for it.

While academic originalism comes in for substantial criticism in all three books, their more subversive theme is that giving history its proper due poses difficulties for the ordinary practice of constitutional lawyering as well.  Whether originalist or not, all lawyers and judges have much to learn from these books.

Read on here.

-- Karen Tani

Wednesday, October 16, 2024

Barrett on the “Nuremberg Trials”

John Q. Barrett, St. John's University School of Law, has posted The Nuremberg Trials: A Summary Introduction:

This lecture was delivered on May 4, 2016, at Jagiellonian University in Krakow, Poland, at “The Nuremberg Symposium: The Nuremberg Laws & the Nuremberg Trials,” sponsored by the International March of the Living, the Raoul Wallenberg Centre for Human Rights, and Jagiellonian University.  The lecture explains that following World War II, there were thirteen “Nuremberg trials” of Nazi war criminals and introduces those proceedings by discussing:   

(1)   The predicate human behavior: making war;
(2)   International law's progress in addressing that behavior before World War II;
(3)   Nazism as human and national regression;
(4)   World War II;
(5)   Legal analysis and war condemnation during World War II;
(6)   The Allied nations' military defeat of Nazi Germany;
(7)   The Allies' international Nuremberg trial of 1945-1946;
(8)   The twelve subsequent American trials in Nuremberg;
(9)   The legal legacy of the Nuremberg trials; and
(10) The human rights legacy, including the Holocaust knowledge legacy, of the Nuremberg  trials.

This lecture appears in a symposium issue that also includes lectures and remarks by Wojciech Nowak, Richard Heideman, Shmuel Rosenman, Irwin Cotler, Alan Dershowitz, Samantha Power, Justin Trudeau, Robert Badinter, Luis Moreno-Ocampo, Ayelet Shaked, Zdzislaw Mach, Michael Berenbaum, Edward Mosberg, John Dyson, Dorit Beinish, Sam Rugege, Rosalie Silberman Abella, Marie Thérèse Mukamulisa, Malcolm Hoenlein, Ron Prosor, Elizabeth Buettner, Brooke Goldstein, Stuart Eizenstat, Phyllis Greenberg Heideman, David Machlis, Gregory Peterson, and Aleksandra Gliszczynska-Grabias.

--Dan Ernst

Maynooth History Research Seminar

[We have the following announcement.  DRE.]

Maynooth University announces a History Research Seminar on Thursday, October 17, 2024, from 17:00 to 19:15, in AHI Seminar Room 1.33, First Floor, IONTAS.  All are welcome.

Session one: 5.00pm-6.00pm

Dr Ashok Malhotra (School of History, Anthropology, Politics & Philosophy, Queen’s University Belfast)
Establishing Imperial Nutritional and Agricultural Scientific Research Institutes in British India, 1918-29

Ashok Malhotra is a historian of British India and of twentieth-century global organic farming movement. He holds a PhD from Edinburgh University and had been a British Academy Postdoctoral Fellow at the University of Warwick. His publications include Making British Indian fictions, 1772-1823 (2012). His current research project explores how colonial and agricultural research, undertaken in British India in the twentieth century, shaped the organic and environmental movements that emerged during the 1940s and 60s in Britain and the United States.

Session two: 6.00pm-7.15pm

Donal Coffey (Department of Law, Maynooth University)
An Imperial legal service in inter-War London

Dr Donal Coffey specialises in contemporary constitutional law and comparative constitutional history and is specifically interested in the constitutional history of the British Empire.  He holds a PhD from University College Dublin, his publications include Drafting Irish Constitution, 1935-1937 (2018) and Constitutionalism in Ireland, 1932-1938 (2018), and he is an Affiliate Researcher of the Max Planck Institute for Legal History and Legal Theory, Frankfurt am Main.

Tuesday, October 15, 2024

Cromwell Article of the Year Prize to Allread and Zhang and Morley


[We have the following announcement.  DRE]

October 15, 2024
New York, New York

The William Nelson Cromwell Foundation announced today that its Legal History Article of the Year Prize for 2023 is awarded to W. Tanner Allread for “The Specter of Indian Removal,” and to Taisu Zhang and John D. Morley for “The Modern State and the Rise of the Business Corporation.”  

In “The Specter of Indian Removal: The Persistence of State Supremacy Arguments in Federal Indian Law,” 123 Columbia Law Review 1533 (2023), Allread takes Oklahoma v. Castro-Huerta, decided by the U.S. Supreme Court in 2022, as a point of departure for exhuming the 1820s and 1830s origins of contemporary defenses of state (as opposed to federal) power over Native nations. Allread shows that the era of Removal and genocide was accompanied by systematic efforts to assert state jurisdiction over Native sovereignty. He describes the legal bases asserted for those efforts.  And he traces the persistence of these early nineteenth century developments into the modern era. For Allread, state power’s Removal roots are an ugly reminder of the past.

In “The Modern State and the Rise of the Business Corporation,” Morley and Zhang tackle a longstanding debate about the historical origins of the corporate form. Taking up a wide array of historical examples, ranging from late imperial China to the early United States, they show that pooling of strangers into a single enterprise requires the coercive powers of a state with the capacity to coerce the participants. Contrary to theorists who posit the corporation as a creature of private market actors’ self-interest, Morley and Zhang show the irreducible necessity of state regulation in its basic foundations.

The William Nelson Cromwell Foundation, established by William Nelson Cromwell in 1930, supports work in American legal history.  The Foundation has long awarded Early Scholar prizes and fellowships to early career scholars in the field of American legal history. The Foundation’s new prize for the legal history article of the year, which includes a $10,000 award, is intended to recognize the growing role of legal history and teaching and research in law schools. The new annual prize is awarded for the best article in the field of legal history, written by a legal scholar, or published in a journal of legal scholarship. This is the first prize the Foundation has offered that is open to scholars of any level of seniority. The prize committee, chaired by Foundation trustee John Fabian Witt (Yale Law School), consisted of Foundation trustees Sarah Barringer Gordon (Penn Carey Law) and John Langbein (Yale Law School), along with Dan Ernst (Georgetown Law), Amalia Kessler (Stanford Law School), and Alison LaCroix (University of Chicago Law School).  

The Foundation makes grants to support important work in all facets of American legal history including archival preservation, scholarly study of original documents, original research in all areas of the law, and research and writing of biographies of major legal figures. Information on how to apply for a prize, fellowship or grant may be found on the Foundation’s website.

Lodz Anglo-American Legal Workshop

[We have the following announcement.  DRE.]

Lodz Anglo-American Legal Workshop

Organized by the Centre for Anglo-American Legal Tradition, University of Lodz, Academic Year 2024/2025

23 October 2024 – Jan Kunicki (University of Warsaw), The Significance of Roman-Dutch Law
in Scope of the Law of Marriages in Contemporary Zimbabwe
.

19 November 2024 – Prof. Cynthia Nicoletti (University of Virginia), The Grant of “Possessory
Title” and the Special Field Orders No. 15.


04 December 2024 – Dr Ashley Hannay (University of Manchester), "Damna Usuum":
Rethinking the Passage of the Statute of Uses (1536)
.

29 January 2025 – Rosalind Ackland (University of Cambridge), Edward Coke’s Classical
Common Law
.

05 February 2025 – Michał Zapała (University of Lodz), Life and Codification Activity of David
Dudley Field.


19 March 2025 – Prof. Jan Halberda (Jagiellonian University), The Introduction of Good Faith
and Fair Dealing into American Contract Law. Between Common Law and Civil Law.

All workshops will take place in hybrid format. In-person par9cipants are invited to
join us at the Centre for Anglo-American Legal Tradi9on (Faculty of Law and Administration building, room 0.09, ground floor). Online viewers must register to aIend each workshop. The registration form will be distributed online via social media approximately one week before the workshop. All workshops start at 5PM (Poland and most European countries) / 4PM (UK and Ireland) / 11AM (US Eastern Coast). In case of any question please don’t hesitate to contact us by emailing Anglo-AmericanLT@wpia.uni.lodz.pl.

Monday, October 14, 2024

Collecting Oral Histories

 In my last post, I discussed the challenges of writing a history that ends so close to the present day. However, there was also a clear benefit to writing a recent history: I had a rich set of sources for my research. Most of Family Matters is centered in the 1990s, when individuals and companies were increasingly using email – and still printing out the messages! As a result, I had the great fortune of being able to review hard copies of typewritten documents. (I’ll admit, I squealed every time I saw the AOL logo at the top of an email.) Moreover, I was able to fill in gaps with oral history interviews. In this post, I’ll cover how I went about collecting oral histories.

The first step in collecting oral histories is always identifying people to interview. (That was usually the simplest task in the process, thanks to the spreadsheets I discussed in my second post.) The second step is tracking the individuals down. I did name searches in google, which often produce email address or phone numbers on their institutional websites or their social media pages. If that didn’t work, I could often find groups with which they were or had been associated. I contacted those organizations, by phone, email, or snail mail, asking if they would be willing to pass a message to the individual, along with my contact information.

 Most of the people who I contacted responded with enthusiasm. They were glad to hear someone was writing a book on the subject and were eager to share their experiences. Many of these interviews opened the door to additional interviews. That was in part because, during each session, I asked each person if they could think of anyone else who I should speak with about the subject, which helped me identify additional interviewees.

I also asked them if they could put me in contact with those people. That could be extremely helpful, for two reasons. First, some people felt more comfortable speaking with me after they had heard from people they trusted. One of the major players in the debates over gay and lesbian rights in the 1980s and 1990s was psychologist Paul Cameron, who produced a series of studies claiming homosexuals were more likely to molest children then heterosexuals. His anti-homosexual bias was so virulent and obvious that the American Psychological Association ultimately expelled him for ethics violations. I wanted to speak with him about what led him to his research and how he designed his studies, but he did not respond to my initial messages. However, after I interviewed another conservative researcher, who sent Cameron an email vouching for my professionalism, he agreed to speak with me.

The other way that my interviewees opened doors was by contacting individuals I could not track down myself. I’ll never forget the day my phone rang from an unknown New Hampshire number. I had been researching New Hampshire’s 1987 law banning gay and lesbian foster parents. One of my interviewees, who had advocated against the statute, recommended I speak with Donna Sytek, who was then a leading New Hampshire Republican legislator. The person had said they would try to track her down, but after weeks went by, I lost faith that would happen. My efforts to find her email, phone number, or address had failed. I had accepted it wasn’t meant to be when the phone call came through. I picked up, the person on the other line said something along the lines of: “This is Donna Sytek. I heard you wanted to speak to me?” I was flustered, thrilled, and confused. I asked her how she had found out I was searching for her. She told me that someone I had interviewed had talked to another person, who spoke to someone else, who ran into Sytek at the grocery store. Everyone had told me New Hampshire was a small state. No kidding!

 Of course, some people who I wanted to interview never responded to my messages, while others simply declined. The reasons they gave indicated just how controversial the events continued to be, despite the time that has passed. There is perhaps no better example of that than the message I received from Eloise Anderson, the former director of the California Department of Social Services (CDSS).

 I contacted Anderson as part of my research on same-sex couples’ efforts to adopt children in the 1980s and 1990s. In 1987, CDSS announced it would only recommend joint adoptions by married couples. The agency developed this policy to avoid endorsing same-sex parents, while also sidestepping claims that it was discriminating based on sexual orientation. In 1994, the agency rescinded the policy – much to the Governor’s dismay. He blasted Anderson, whom he had appointed, for her “huge overstep” and instructed her to reinstate the policy. Here's where things got interesting. The agency acted as if it were complying – it held hearings and created a proposed rule that complied with the administrative process. But then Anderson did something unexpected: she refused to file the paperwork. She let the proposed rule languish until the deadline for its implementation had passed. As a result, the police never became law. The governor, legislators, and activists assumed that the policy was in place—and the truth only came to light in 1998.

 A newspaper account of the events provided two different explanations. One was that the measure garnered so much opposition that it was impossible for CDSS to respond to all of the comments within the administrative procedure deadline. Another came from a former official, who told the reporter: “Eloise didn’t believe in what the governor was asking . . . so she just didn’t do it.” As you can imagine, I really wanted to speak to Anderson to find out more about what had actually happened. I therefore emailed her—and was initially excited to receive a quick reply. Her response, however, was not at all what I expected. She declined my request…because she claimed to have absolutely no memory of any of the events about which I wanted to speak with her!

Given the turmoil that surrounded the policy—and the fact that the state governor publicly reprimanded her for her actions—I had trouble believing her statement. At the same time, I completely understood her reluctance to talk about the events, especially since she was serving as the Secretary of Children and Families in Wisconsin at the time I contacted her.

Anderson was just one of the dozens of people who declined or did not respond to my requests for an interview. But just as many people—if not more—said yes. In my next post, I’ll address how I went about using the oral histories I collected. All of them helped make Family Matters a more complete and richer account of the struggle for queer rights.

Photo by 2H Media on Unsplash

Peterson on the 14th Amendment and the Vénus Noire

Farah Peterson, University of Chicago Law School, has posted The Fourteenth Amendment and the Vénus Noire, which appears in the William & Mary Law Review:

This Essay reflects on art to make two points. It first argues that originalism is not a promising path for progressive causes. It then argues that as the Constitution is amended, the meaning of the entire document is altered, and earlier text should be interpreted in light of what has changed.

--Dan Ernst

Sunday, October 13, 2024

History, Tradition, and Legal History in the Law-School Curriculum

Yesterday, Bloomberg Law published the reporters Lydia Wheeler and Kimberly Strawbridge Robinson’s story, Justices’ History Focus Tests Lawyers, Judges, and Law Schools.  Among other things, they report that the history and tradition approach of the U.S. Supreme Court is putting a premium on law students who can do legal history–beyond the skills taught in originalism “boot camps.”  They quote a lawyer with a Supreme Court practice: “History and tradition I do think is tough because you’re expanding the playing field to include everything that happened, potentially at both the state and federal level at a given point in time, which could have been hundreds of years ago.”  They observe, “Historical research isn’t a skill that law students traditionally learn” and quote Saul Cornell for the proposition that law schools aren’t teaching students how to do historical research.  “Right when this is most important, law schools don’t have the infrastructure,” Professor Cornell said.

--Dan Ernst

Saturday, October 12, 2024

Weekend Roundup

  • Thomas M. Cooley (NYPL)
    The last known descendant of Thomas Cooley has given the document appointing him the first chairman of the Interstate Commerce Commission to--Thomas Cooley! (Fox 17).  
  • Brenda Wineapple discusses her book on the 1925 Scopes "Monkey" Trial,  Keeping the Faith: God, Democracy, and the Trial That Riveted A Nation, with Claire Potter on her Political Junkie podcast.
  • In the September 2024 issue of the Journal of American HistoryMyisha S. Eatmon “examines Black Americans’ use of tort law and damage suits to pursue and gain recourse for white-on-Black violence on trains during the early days of Jim Crow.”
  • John Witte, Jr., reviews (some of) Rafael Domingo's Law and Religion in A Secular Age (Exaudi).
  • A recording of that discussion on originalism at the National Constitution Center between Jonathan Gienapp and Stephen Sachs is now on YouTube.
  • ICYMI: Mississippi’s oldest law firm will be memorialized with an historical marker (Vicksburg News). Andrew Lanham says The Supreme Court’s Originalists Are Fundamentally Wrong About History (TNR).  Rachel Shelden says that A Transformed Supreme Court Requires Different Solutions (Brennan Center).

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

Friday, October 11, 2024

Masur's "Freedom Was in Sight"

Kate Masur, Northwestern University, with the graphic artist Liz Clarke, has published Freedom Was in Sight: A Graphic History of Reconstruction in the Washington, D.C., Region (University of North Carolina Press):

The Reconstruction era was born from the tumult and violence of the Civil War and delivered the most powerful changes the United States had seen since its founding. Black Americans in Washington, D.C., and its surrounding region were at the heart of these transformations, bravely working to reunite their families, build their communities, and claim rights long denied them. Meanwhile, in the capital, government leaders struggled to reunite and remake the nation. Famous individuals such as Frederick Douglass and Ida B. Wells played central roles, as did lesser-known figures like Emma Brown, the first African American teacher in Washington's public schools, and lawyer-journalist William Calvin Chase, longtime editor of the Washington Bee.

Freedom Was in Sight! draws on the words and experiences of people who lived during Reconstruction, powerfully narrating how the impacts of emancipation and civil war rippled outward for decades. Vividly drawn by award-winning graphic artist Liz Clarke and written by Pulitzer Prize–finalist Kate Masur, a leading historian of Reconstruction, this rich graphic history reveals the hopes and betrayals of a critical period in American history.
An endorsement:
"Reconstruction began with emancipation as lived experience and national transformation; it has never really ended. Here, in vivid visuals, a tight narrative, and rich context, Masur and Clarke give readers an experience they will not forget. So much of this story happened in and around the Washington, D.C., region, and the author and artist reveal its most significant constitutional and moral meanings for the eye and the mind. I can only wish I'd had this kind of powerful history of Reconstruction in my youth. This tale of America's second founding in the capital city as thousands of freedmen found new homes and lives is withering, visually stunning, and good history all at once."—David W. Blight, author of Frederick Douglass: Prophet of Freedom.

The Organization of American Historians is hosting a book event on October 16 at 4:30 EST; register for it here.

--Dan Ernst

Thursday, October 10, 2024

Writing a History of Progress During a Period of Retrenchment

Mark Twain is frequently credited with the aphorism: “History doesn’t repeat itself, but it often rhymes.” All of you reading this blog post know how right he was. The present does not follow the same sequence of events as the past—changes in politics, society, and culture make that impossible. Yet even though the specifics differ, there are invariably clear parallels between the past and the present.

I see echoes of Family Matters every day, especially in my home state of North Carolina. As I discussed in my last post, LGBTQ+ rights debates have primarily taken shape at the state and local level. That continues to be true. In recent years, jurisdictions across the United States have enacted laws that limit what students can learn in schools about sexual orientation and gender identity, prohibited trans students from participating on sports teams that align with their gender identity, and restricted minors’ access to gender affirming care. These legislative battles have been waged over claims of child protection and calls for parents’ rights—much like the attacks on gay and lesbian rights that I detail in Family Matters. (If you’re interested in a short summary of how Christian conservatives have wielded child protection claims to oppose queer civil liberties, check out this piece I recently published in Time.)


Photo by Nikolas Gannon on Unsplash

Photo by Nikolas Gannon on Unsplash
 That there is such a direct link between the historical issues in Family Matters and present politics is to be expected – after all, the story I tell goes to 2015! But it was a challenge to write a story of recent progress during a period of political and legal retrenchment. Family Matters tells the story of a successful campaign to promote the rights of queer families. However, it is not a triumphalist narrative of gay and lesbian legal victories. The right to marry was simply one step in the fight for full legal equality, which gays, lesbians, and other members of the LGBTQ+ community are still working to attain. Queer rights continue to be contested, with advocates experiencing defeats as well as victories.

Writing this book thus required striking a balance between emphasizing progress and recognizing the movement’s limitations. I struggled to do this most with this in my chapters on advocates’ educational initiatives. During the 1980s, the queer community was under constant attack. Gays and lesbians had long been the targets of violence, but the AIDS crisis unleashed a new torrent of animosity against the queer community. As hatred rose, so too did physical assaults. Most of the perpetrators were teenagers, who knew little about the queer world other than the prejudice they had learned from the adults in their lives. Of course, straight youth did not just torment queer adults—they also directed their anger and hatred at their peers. Gay and lesbian teens, as well as youth suspected of being queer, endured rampant rejection, harassment, and violence from their classmates, which reinforced the hateful messages they received from teachers, parents, and community members. As a result, a substantial percentage of queer youth dropped out of school, abused alcohol and drugs, and considered ending their despair with their own hands. Indeed, by the end of the 1980s, suicide had become the leading cause of death among queer adolescents.

 

To stem the rising tide of violence, gay and lesbian rights advocates lobbied for changes to educational policies. They pressed schools to support queer students with in-school counseling programs, which would emphasize that same-sex sexual attraction was not shameful. They additionally demanded that schools combat bias against same-sex sexuality by teaching all students that gays and lesbians deserved the same dignity and respect as other members of society. In New York City, these advocates succeeded in securing three references to same-sex parents in a 1991 first-grade teacher’s guide. This limited mention of same-sex sexuality was enough for the city to erupt in anger and acrimony. Shoving broke out in school board meetings, thousands of parents took to the streets in protest, and the Schools Chancellor received two death threats.

 

Given how controversial the education reform efforts were, it is no surprise that queer rights advocates made little headway. And yet I firmly believe that these efforts were consequential. The educational reform initiatives may not have changed the curricular content of most schools, but they allowed gay and lesbian rights advocates to continue refuting the religious right’s child protection arguments. Doing so was essential, given how often Christian conservatives wielded child protection rhetoric to impede queer rights advocacy. Through curricular reform battles, gay and lesbian rights organizations communicated that the key problem was not protecting children from gays and lesbians. Homosexuality, after all, was common, unremarkable, immutable trait. Instead, schools had to focus on the needs of children with gay and lesbian parents, as well as the welfare of gay and lesbian youth, by combatting antiqueer bias. In other words, what children needed to be protected from was not the queer community, but rather homophobia.

 

The LGBTQ+ community and its allies are continuing to fight similar battles, waged over parallel claims about the origins of queer identity. Some days, I look at the news and it seems that the history is not just rhyming, but actually repeating itself. For supporters of LGBTQ+ rights, that fact is dispiriting. Queer rights advocates have spent so many decades combatting variations on the child protection theme that the trope seems like a never-ending game of whack-a-mole. At the same time, the fact that advocates have succeeded in the past should inspire confidence in their ability to do so again.

 

One of the benefits of writing a history that comes so close to the present day is that it not only helps readers contextualize the past—it also offers hope for the future. The current legal landscape might seem grim, but the law can change for the better. After all, as Family Matters demonstrates, it already has.

 

In my next post, I’ll take up a more pragmatic set of opportunities and challenges that came from writing a history of the present: the ability to conduct oral history research.

 


Photo by Nikolas Gannon on Unsplash.