--Dan Ernst
Earlier this year, Brill released Rights at the Margins: Historical, Legal and Philosophical Perspectives, edited by Jonathan Robinson (independent scholar), Virpi Mäkinen (University of Helsinki), Pamela Slotte (Åbo Akademi University), and Heikki Haara (University of Helsinki). A description from the Press:
Contributors: Wim Decock, Heikki Haara, Virpi Mäkinen, Alejandra Mancilla, Julia McClure, Ilse Paakkinen, Mikko Posti, Jonathan Robinson, John Salter, Pamela Slotte, and Jussi Varkemaa.The essays in this volume explore the ways rights were available to those in the margins of society. By tracing pivotal judicial concepts such as 'right of necessity' and 'subjective rights' back to their medieval versions, and by situating them in unexpected contexts such as the Franciscans' theory of poverty and colonization or today's immigration and border control, this volume invites its readers to consider whether individual rights were in fact, or at least in theory, available to the marginalized. By focusing not only on the economically impoverished but also those who were disenfranchised because of disability, gender, race, religion or infidelity, this book also sheds light on the relationship between the early history of individual rights and social justice at the margins.
More information, including the TOC, is available here.
H/t New Books in Law.
-- Karen Tani
The slow growth in the number of states that have enacted legislation to permit what is often referred to as “death with dignity” legislation—and more frequently referred to popularly as “physician assisted suicide” laws—has begun to accelerate in the past few years since the enactment of the first such statute in Oregon in 1994.Read on here. (h/t: Legal Theory Blog)
Like much other social reform legislation, there is a long history behind it. In this case, the history in the United States dates back at least to the latter part of the nineteenth century. Not until the 1980s, however, did these efforts gain any traction in courts and legislatures. What is probably more responsible than anything else for reviving interest in and providing momentum for legalization is the recognition by state courts, beginning with the Karen Ann Quinlan case in New Jersey in 1975, that the right to be free from unwanted interference with one’s bodily integrity encompasses a right to refuse even life-sustaining medical treatment. The recognition of this so-called right to die was only a short conceptual step—though a long political one—from recognizing that competent adults also should have the right to actively end their lives under certain conditions.
As of the end of 2019, the efforts of a small number of advocacy groups through lobbying, litigation, and public education have resulted in the enactment of death with dignity legislation in nine states and recognition of the right by one state supreme court. Despite dire warnings from opponents of legalization, it has not resulted in either wholesale abuse of the dying or the legalization of active euthanasia (either voluntary or involuntary).
Praise for the book:
From 1948 to 1966, the United Nations worked to create an international bill of rights that would provide a common standard for human rights protection around the globe. Canadians celebrate their country’s central role in this endeavour every Human Rights Day. Yet a detailed study of government policies toward these early UN documents tells a different story.Resisting Rights analyzes the Canadian government’s initial opposition to the development of international human rights law, exploring how and why this position changed from the 1940s to the 1970s. Jennifer Tunnicliffe takes both international and domestic developments into account to explain how shifting cultural understandings of rights influenced policy, and to underline the key role of Canadian rights activists in this process.In light of the erosion of Canada’s traditional reputation as a leader in developing human rights standards at the United Nations, this is a timely study. Tunnicliffe situates current policies within their historical context to reveal that Canadian reluctance to be bound by international human rights law is not a recent trend, and asks why governments have found it important to foster the myth that Canada has been at the forefront of international human rights policy since its inception.Resisting Rights will appeal to students and scholars of the development of domestic and international human rights, and more generally of Canadian history, politics, diplomacy, and foreign policy, particularly at the United Nations. It will also find an audience among individuals or organizations interested in Canada’s human rights history.
While challenges to authority are generally perceived as destructive to legal order, this original collection of essays, with Magna Carta at its heart, questions this assumption. In a series of chapters concerned with different forms of challenges to legal authority - over time, geographical place, and subject matters both public and private - this volume demonstrates that challenges to authority which seek the recognition of rights actually change the existing legal order rather than destroying it. The chapters further explore how the myth of Magna Carta emerged and its role in the pre-modern world; how challenges to authority formed the basis of the recognition of rights in particular areas within England; and how challenges to authority resulted in the recognition of particular rights in the United States, Canada, Australia and Germany. This is a uniquely insightful thematic collection which proposes a new view into the processes of legal change.More information, including the TOC, is available here.
This book tells the movement and litigation stories behind important reproductive rights and justice cases. The twelve chapters span topics including contraception, abortion, pregnancy, and assisted reproductive technologies, telling the stories of these cases using a wide-lens perspective that illuminates the complex ways law is debated and forged―in social movements, in representative government, and in courts. Some of the chapters shed new light on cases that are very much part of the constitutional law canon―Griswold v. Connecticut, Roe v. Wade, Planned Parenthood v. Casey, Nevada Department of Human Resources v. Hibbs. Others introduce the reader to new cases from state and lower federal courts that illuminate paths not taken in the law.
Reading the cases together highlights the lived horizon in which individuals have encountered and struggled with questions of reproductive rights and justice at different eras in our nation’s history―and so reveals the many faces of law and legal change. The volume is being published at a critical and perhaps pivotal moment for this area of law. The changing composition of the Supreme Court, increased executive and legislative action, and shifting political interests have all pushed issues of reproductive rights and justice to the forefront of contemporary discourse. The volume is suited to a wide range of law school courses, including constitutional law, family law, employment law, and reproductive rights and justice; it could also be assigned in undergraduate or graduate courses on history, gender studies, and reproductive rights and justice.All of the editors have contributed solo- or co-authored essays. The other contributors are: Samuel R. Bagenstos (University of Michigan Law); Khiara M. Bridges (Boston University School of Law); Deborah Dinner (Emory Law); Cary Franklin (University of Texas at Austin School of Law); Linda Greenhouse (New York Times/Yale Law School); Maya Manian (University of San Francisco School of Law); Serena Mayeri (University of Pennsylvania School of Law); Douglas NeJaime (Yale Law School); Priscilla A. Ocen (Loyola Law School, Los Angeles); Neil S. Siegel (Duke Law).
Almost Citizens unfolds in two parts. The first concerns Federico Degetau, a legal idealist. He believed that the Supreme Court would, if squarely presented with the issue, adhere to settled constitutional understandings and judge Puerto Ricans to be rights-rich U.S. citizens of a future state. That never happened. The book’s second half focuses on Puerto Ricans who use politics to gain rights. They have more success. Yet the book is sympathetic to Degetau. The afterword pines for a revival of older constitutional understandings. So which is it: Is law or politics dominant? Was Degetau savvy or naïve?
At the turn of the twentieth century, life was changing drastically in Alaska. The gold rush brought an onslaught of white settlers to the area, railroad companies were pushing into the territory, and telegraph lines opened up new lines of communication. The Native groups who had hunted and fished on the land for more than a century realized that if they did not speak up now, they would lose their land forever.
This is the story of a historic meeting between Native Athabascan leaders and government officials, held in Fairbanks, Alaska in 1915. It was one of the first times that Native voices were part of the official record. They sought education and medical assistance, and they wanted to know what they could expect from the federal government. They hoped for a balance between preserving their way of life with seeking new opportunities under the law.
The Tanana Chiefs chronicles the efforts by Alaska Natives to gain recognition for rights under Western law and the struggles to negotiate government-to-government relationships with the federal government. It contains the first full transcript of the historic meeting as well as essays that connect that first gathering with the continued efforts of the Tanana Chiefs Conference, which continues to meet and fight for Native rights.Praise for the book includes:
An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional courts or apex courts that engage in constitutional review: those of the United States, Canada, Germany, Australia, India, Hong Kong, Malaysia, and Singapore.
Because our selection of cases aims to be illustrative rather than exhaustive, we do not attempt to draw firm conclusions about the global use of constitutional history. Still, the qualitative evidence that follows hints at what might well be universal within constitutional judging: (1) the significance of history broadly understood, and (2) the limits on history’s reach into contemporary rights conflicts.
Here’s the TOC:The rights revolution in the United States consisted of both sweeping changes in constitutional doctrines and landmark legislative reform, followed by decades of innovative implementation in every branch of the federal government - Congress, agencies, and the courts. In recent years, a growing number of political scientists have sought to integrate studies of the rights revolution into accounts of the contemporary American state. In The Rights Revolution Revisited, a distinguished group of political scientists and legal scholars explore the institutional dynamics, scope, and durability of the rights revolution. By offering an inter-branch analysis of the development of civil rights laws and policies that features the role of private enforcement, this volume enriches our understanding of the rise of the 'civil rights state' and its fate in the current era.
Part I. Introduction:The chapter is by Ming Hsu Chen, University of Colorado Law School: Regulatory Rights: Civil Rights Agencies, Courts, and the Entrenchment of Language Rights:
1. Reassessing the rights revolution Lynda G. Dodd
Part II. Implementing the Rights Revolution:
2. Approaches to enforcing the rights revolution: private civil rights litigation and the American bureaucracy Quinn Mulroy
3. Mobilizing rights at the agency level: the first interpretations of Title VII's sex provision Jennifer Woodward
4. Motivating litigants to enforce public goods: evidence from employment, housing, and voting discrimination policy Paul Gardner
5. Regulatory rights: civil rights agencies, courts, and the entrenchment of language rights Ming Hsu Chen
6. Sexual harassment and the evolving civil rights state R. Shep Melnick
7. The civil rights template and the Americans with Disabilities Act: a socio-legal perspective on the promise and limits of individual rights Thomas F. Burke and Jeb Barnes
Part III. Rights and Retrenchment:
8. Retrenching civil rights litigation: why the court succeeded where congress failed Stephen Burbank and Sean Farhang
9. The contours of the Supreme Court's civil rights counterrevolution Lynda G. Dodd
10. Constraining aid, retrenching access: legal services after the rights revolution Sarah Staszak
Part IV. The Future of the Rights Revolution:
11. Rationalizing rights: political control of litigation David Freeman Engstrom
12. The future of private enforcement of civil rights Lynda G. Dodd.
Shortly after passage of the Civil Rights Act of 1964, policymakers recognized the need to transform the aspirations of civil rights rhetoric into concrete solutions for new immigrants and non- English speakers whose presence dramatically increased following passage of the Hart-Cellar Act in 1965. The Hart-Cellar Act lifted national origin quotas on Asian and Latin American countries, ushering in an unprecedented amount of racial and ethnic diversity. Asian and Hispanic immigrants faced many of the same barriers as African Americans, whose pioneering efforts culminated in sweeping civil rights reforms in many areas of public life. The new immigrants additionally faced language barriers. Many Asian and Hispanic immigrants lacked the language skills to fully participate in mainstream institutions where English predominated. Generations of neglect also meant that some Asians and Hispanics lacked English language competency despite years of residence in ethnic enclaves in cities. In both schools and workplaces, the achievements of the civil rights movement eluded language minorities. This chapter explains how civil rights laws evolved to incorporate the needs of LEP speakers after 1965 and shows how federal civil rights agencies served as the engine of civil rights expansions on behalf of language minorities in the years following the passage of the Civil Rights Act and Hart-Cellar Act.
Fundamental Rights Law is a ubiquitous feature of modern American jurisprudence. Where did the term “Fundamental Rights” come from, and how was it applied in early American case law? This article outlines the genesis of fundamental rights law in early 17th century England and how this law developed and was applied over time. The English Bill of Rights of 1689 was the first attempt to codify these rights in English law. When the English legal system emigrated to America along with the early American colonists, it included the English conception of fundamental rights. The framers of the United States Constitution incorporated and expanded these rights. Early American Case law kept strictly within this tradition for the most past, and used the term “fundamental rights” usually for rights which had long been recognized in Anglo-American society. This article notes the concordance between the application of fundamental rights in early American case law and the long tradition of fundamental rights which ripened in the Anglo-American legal tradition.
Here are some endorsements:Habeas corpus, the storied Great Writ of Liberty, is a judicial order that requires government officials to produce a prisoner in court, persuade an independent judge of the correctness of their claimed factual and legal justifications for the individual’s imprisonment, or else release the captive. Frequently the officials resist being called to account. Much of the history of the rule of law, including the history being made today, has emerged from the resulting clashes.
This book, heavily based on primary sources from the colonial and early national periods and significant original research in the New Hampshire State Archives, enriches our understanding of the past and draws lessons for the present.
Using dozens of previously unknown examples, Professor Freedman shows how the writ of habeas corpus has been just one part of an intricate machinery for securing freedom under law, and explores the lessons this history holds for some of today’s most pressing problems including terrorism, the Guantanamo Bay detentions, immigration, Brexit, and domestic violence.
Exploring landmark cases of the past - like that of John Peter Zenger - from new angles and expanding the definition of habeas corpus from a formal one to a functional one, Making Habeas Work brings to light the stories of many people previously overlooked (like the free black woman Zipporah, defendant in “the case of the headless baby”) because their cases did not bear the label “habeas corpus.”
The resulting insights lead to forward-thinking recommendations for strengthening the rule of law to insure that it endures into the future.
The law delivers uneven benefits for the protagonists of Daniel K. Williams’ masterful study of the early decades of the pro-life movement. Williams chronicles the transformation in the 1960s of what had been a religious crusade against contraception and abortion into a secular, rights-based cause that also appealed to some left-leaning Catholics and Protestants. Williams argues that antiabortion activists invested more in legal strategies after the Supreme Court’s decision in Roe v. Wade. Leaders of the movement became preoccupied with a constitutional amendment overturning Roe. Entanglement with law ultimately undercut demands for material benefits that some pro-lifers believed women required to have a real reproductive choice.
Williams first takes readers into the poorly understood years of early pro-life activism when “the campaign against abortion was almost inseparable from the Catholic Church’s fight against contraception.” (P. 4.) By studying the predominantly religious and medical debates that dominated the 1930s and 1940s, Defenders of the Unborn recovers a mostly lost prehistory of the abortion battle. At this time, as Williams shows, debate often turned not on the meaning of the Constitution but on the medical need for abortion and the religious beliefs of those opposed to it. Williams also traces the origins of now-ubiquitous comparisons of abortion and the Holocaust to this period.Read on here.
More information is available here.“The history of the black lawyer in South Carolina,” writes W. Lewis Burke, “is one of the most significant untold stories of the long and troubled struggle for equal rights in the state.” Beginning in Reconstruction and continuing to the modern civil rights era, at least 168 black lawyers were admitted to the South Carolina bar. All for Civil Rights is the first book-length study devoted to those lawyers’ struggles and achievements in the state that had the largest black population in the country, by percentage, until 1930—and that was a majority black state through 1920.
Examining court processes, trials, and life stories of the lawyers, Burke offers a comprehensive analysis of black lawyers’ engagement with the legal system. Some of that study is set in the courts and legislative halls, for the South Carolina bar once had the highest percentage of black lawyers of any southern state, and South Carolina was one of only two states to ever have a black majority legislature. However, Burke also tells who these lawyers were (some were former slaves, while others had backgrounds in the church, the military, or journalism); where they came from (nonnatives came from as close as Georgia and as far away as Barbados); and how they were educated, largely through apprenticeship.
Burke argues forcefully that from the earliest days after the Civil War to the heyday of the modern civil rights movement, the story of the black lawyer in South Carolina is the story of the civil rights lawyer in the Deep South. Although All for Civil Rights focuses specifically on South Carolinians, its argument about the legal shift in black personhood from the slave era to the 1960s resonates throughout the South.
The line-up for “Rights and Wrongs,” this year’s Constitution Day conference at San Francisco State University, to be held September 18-19 2017, is here. The keynoters are Robin D. G. Kelley, UCLA, who will speak on “Crimes of Liberty: The Origins of the Constitution and the Unfinished Business of Abolition,” and Shirin Sinnar, Stanford Law School, who will present “The Travel Ban, National Security, and the Courts.” H/t: H-Law
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| James Madison (LC) |
When introducing the Bill of Rights in Congress, James Madison explained that judges would “consider themselves in a peculiar manner the guardians” of those enumerated rights. This famous passage, often treated as authoritative, is conventionally understood to endorse the judicial enforceability of enumerated rights and deny the judicial enforceability of unenumerated rights. Enumeration, in other words, is considered as both a necessary and a sufficient condition for the judicial enforcement of rights against contrary legislation. This Essay disputes each of these orthodox views. Instead, it argues, Madison was commenting on judicial psychology and judicial politics, not judicial duty. Enumeration, in short, would facilitate the enforcement of rights, even if judges were already legally obliged to uphold them. Moreover, this Essay argues, both Madison’s proposed bill of rights and his speech in support were deliberately noncommittal about the legal significance of enumeration. Addressing an audience that had conflicting views on that issue, he drafted and defended the Bill of Rights to obtain support from all sides. Consequently, neither the Bill of Rights nor Madison’s advocacy reveal whether, legally speaking, enumeration is a necessary or sufficient condition for the judicial enforcement of rights against contrary legislation.
It is commonplace today to associate rational basis review exclusively with groups that are not formally afforded heightened scrutiny under the Supreme Court’s equal protection precedents: groups like gays and lesbians, people with disabilities, and undocumented immigrants. Thus, discussions of the benefits of nurturing a jurisprudence of meaningful rational basis review typically focus exclusively on such “unprotected” groups. In contrast, rational basis review is rarely thought of as providing important protections for groups such as racial minorities and women, who have secured “protected class” status and therefore are subject to regular heightened review of group-burdening classifications.The full article is available here.
Drawing on extensive original archival research, this Article challenges this common conception. Race and sex discrimination litigators have often historically relied on rational basis arguments as a complement to heightened scrutiny. And during eras when robust rational basis review was prevalent—such as the 1970s—these claims have often succeeded. Today, as a result of, inter alia, the LGBT rights cases (which have expanded judicial conceptions of the scope of rational basis review), we stand at a moment of increased possibility for meaningful rational basis review. Rational basis arguments thus ought to form a part of how we conceptualize the contemporary possibilities for race and gender justice claims.
Such an approach has the potential to revitalize what has long been a stalled constitutional jurisprudence around sex and race discrimination. As many scholars have acknowledged, it is extraordinarily rare for courts today to find that a government actor engaged in intentional discrimination against women or racial minorities—the contemporary standard for triggering heightened scrutiny. But as the history unearthed herein demonstrates, courts (especially lower courts) have, at times, been willing to find that racially and gender-impactful laws violate rational basis review. Moreover, such review has often had the capacity to undermine widely shared assumptions regarding the rationality of entrenched structures of race and gender oppression. As such, protected class rational basis review may present one of the few realistic alternatives for reviving a meaningful project of race- and gender-based constitutional change today.
