Pfander and Joffroy on Federalists, Slavery and the Equal Footing Doctrine

James E. Pfander, Northwestern University School of Law, and Elena Joffroy, a 2020 graduate of Northwestern Law, have posted Equal Footing and the States "Now Existing": Slavery and State Equality Over Time, which is forthcoming in the Fordham Law Review:

This Essay, a contribution to Fordham’s Symposium on the Federalist Constitution, reexamines the question whether the Constitution empowered Congress to ban slavery in the territories. We explore that question by tracking two proposed additions to the Constitution, one that would empower Congress to ban the migration and importation of enslaved persons to all new states and territories and one that would oblige Congress to admit new states on an equal footing with the old. We show that the Federalists supported and the Convention adopted the migration provision, enabling Congress to restrict slavery to the states “now existing.” But the Federalists opposed and the Convention rejected the equal footing doctrine.

Over time, things changed. In debates over the admission of Missouri to the Union as a slave state, Southerners offered a popular, if implausible, reinterpretation of the Now Existing Caveat to the Migration and Importation Provision that rendered it practically irrelevant to the expansion of slavery. What is more, Southerners pressed to extend a judge-made equal footing doctrine, urging that new states were entitled to legalize the ownership of people just as the old states were. Chief Justice Roger Taney wrote the Southern interpretation into the Constitution in the Dred Scott v. Sandford opinion, ignoring the Now Existing Caveat and embracing the equal footing doctrine as a matter of constitutional compulsion. While Dred Scott has not survived, the equal footing doctrine now undergirds the idea of equal state sovereignty in such U.S. Supreme Court decisions as Shelby County v. Holder. Meanwhile, the Federalist constitutional settlement has all but disappeared from view.

--Dan Ernst

Weekend Roundup

• 
   A new Talking Legal History is up on the ASLH website. Host Siobhan Barco talks with Joseph E. David about his book Kinship, Law and Politics: An Anatomy of Belonging (CUP, 2020).
  

•  In Immigration: What We've Done, What We Must Do, Allison Brownell Tirres, DePaul University College of Law, asks, How can we envision a world where migrants are offered justice?”  The essay appears in Public Books, an online magazine of ideas, scholarship, and the arts.
  

• Author’s query: “I am working on a book project intended for general readership on U.S. Attorneys-General in the modern era (from Kennedy to Barr and beyond) and would be interested in speaking to any legal historians doing work on or related to that topic."  Joshua Raff, joshuaraff3@gmail.com.
  

• "In his first official action as the [University of South Carolina’s] 29th president, Bob Caslen established the Presidential Commission on University History and charged the group with researching “the complex history of the university.”  More.
  

• “With the nation locked in debates over Confederate symbols, the very document that laid out the legal framework of a government built to preserve slavery will spend its 160th anniversary where it spends nearly every other day: quietly tucked away in a library at the University of Georgia”  (AJC).
  

• Historians of securities regulation might want to view the SEC Historical Society-sponsored discussion with PCAOB's founding board members.  
  

• Yuvraj Joshi, a doctoral candidate at the Yale Law School, has posted Racial Justice and Peace, which is forthcoming in the Georgetown Law Journal.
  

• ICYMI: Remembering the Pakistani Lawyers' Movement (GVS).  Eric Jager on The History Behind Demands for "Trial by Combat" (HNN)
  

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

Park on Conquest and Slavery in the Property Course

K-Sue Park, Georgetown Law, has posted Conquest and Slavery as Foundational to Property Law:

This article demonstrates that the histories of conquest and slavement are foundational to U.S. property law. Over centuries, laws and legal institutions facilitated the production of the two commodities, or forms of property, upon which the colonial economy and the United States came to depend above all others: enclosures of Native nations’ land and enslaved people. By describing the role of property law in creating markets for lands and people, this article addresses the gap between the marginal place of these histories in the contemporary property law canon and the growing scholarly and popular recognition that conquest and enslavement were primary modes of property formation in American history.

First, this article describes how the field of property law has come to omit these histories from its common understanding of what is basic to its subject by examining property law casebooks published over 130 years. For most of their history, it shows, such casebooks affirmed the racial logic of conquest and slavery and contributed to these histories’ suppression in pedagogical materials. Early treatises avowed the foundational nature of conquest, but after the first property law casebook appeared, at the time of the close of the frontier, casebooks for more than half a century emphasized English inheritance, rather than acknowledging colonization’s formative impact on the property system. In the same period, the era of Jim Crow, casebooks continued to include many cases involving the illegal, obsolete form of property in enslaved people; when they ceased to do so, they replaced them with cases on racially restrictive covenants upholding segregation. After several decades, during which the histories of conquest and slavery were wholly erased, casebooks in the 1970s began to examine these histories through a critical lens for the first time. However, the project of understanding their consequences for the property system has remained only partial and highly inconsistent.

The central part of this article focuses on the acquisition of property, which, properly understood, comprises the histories of conquest, slavery, expropriation, and property creation in America. It examines the three main theories of acquisition—discovery, labor and possession-- beginning with the United States’ adoption of the Discovery Doctrine, the international law of conquest, as the legal basis of its sovereignty and property laws. In this context, it shows that the operative principle of the doctrine was not that of first-in-time, as commonly taught, but the agreement of European nations on a global racial hierarchy. Second, it turns to the labor theory, which was selectively applied according to the hierarchy of discovery, and firmly linked ideologies about non-whites and property value. It then reframes the labor theory’s central question—property creation—as a matter of legal and institutional innovation, rather than merely agricultural labor. It examines the correlation between historical production of property value in the colonies to show how the main elements of the Angloamerican land system developed through the dispossession of nonwhites-- the rectangular survey, the comprehensive title registry, headrights and the homesteading principle, laws that racialized the condition of enslavement to create property in human beings, and easy mortgage foreclosure, which facilitated the trade of human beings and land as chattel to increase colonists’ wealth. Third, it assesses how the state organized the tremendous force required to subvert others’ possession of their lands and selves, using the examples of the strategy of conquest by settlement and the freedom quests that gave rise to the fugitive slave controversy. Its analysis highlights the state’s delegation of violence and dispossession to private actors invested in the racial hierarchy of property through the use of incentives structured by law.

This article concludes by summarizing how the laws that governed conquest and slavery established property laws, practices, and institutions that laid the groundwork for transformations to interests in land after the abolition of slavery, which I will address in a future companion article. This article aims throughout to offer a framework for integrating the study of English doctrines regulating relations between neighbors-- the traditional focus of a property law course—into an exploration of the unique fruits of the colonial experiment -- the singular American land system that underpins its real estate market and its structural reliance on racial violence to produce value.

--Dan Ernst

CFP: Slavery Past, Present and Future

[We have the following Call for Papers.  DRE.]

Slavery: Past, Present & Future: 5th Global Meeting, July 7-9, 2021.  To be held online on the Zoom platform hosted by Indiana University Robert H. McKinney School of Law.
  
Slavery (the treatment of humans as chattel) and enslavement through conquest, birth, gender, race, ethnicity, kinship, and exploitation of indebtedness have been an intrinsic part of human societies.
Slavery and a variety of other forms of exploitation existed in ancient societies across the world, and in many other states and territories.  The Transatlantic Slave Trade furnished at least 10 million Africans for slavery throughout the Americas.  

Controversial and contested estimates indicate that up to 40 million people worldwide are enslaved today.  This modern re-emergence of slavery into public view, following legal abolition of the trans-Atlantic slave trade over two hundred years ago, is said to be linked to the deepening interconnectedness of countries in the global economy, overpopulation, and the economic and other vulnerabilities of individual victims and communities.

But should we think of these people as enslaved? And if so, is slavery an inevitable part of the human condition? Like 'consumers' of past eras, such as early industrialization, are we dependent on the exploitation of others? What does the persistence and mutations of different forms of exploitation mean in the context of abolition and recognition of universal individual and collective human rights?  

The varieties of contemporary forms of exploitation appear to be endless. This interdisciplinary conference will facilitate a multidisciplinary exploration of slavery in all its dimensions.  

In keeping with previous meetings, the format of the Slavery Past, Present and Future Conference this year will be plenary. We intend to hold the meetings for part of the day only [EST] to avoid Zoom fatigue and expect those who register to attend all the sessions in order to facilitate a genuine cross-fertilization of ideas across identities, disciplines, and subject areas. 

Weekend Roundup

• Celebrating Legal Heroes (during Black History Month) at UVA Law. 

• At the Riesenfeld Rare Books Center, University of Minnesota Law Library: this virtual exhibit on Law and the Struggle for Racial Justice.
  

• On February 17, Chris J. Brummer, Georgetown Law, delivered the keynote address in the Securities and Exchange Commission’s observance of Black History Month.  He drew upon his Brookings Working Paper, "What do the Data Reveal about (the Absence of Black) Financial Regulators?"  The text of the address is here.
  

• University at Buffalo’s notice of that symposium issue for John Henry Schlegel (UBNow).  Click for the pic! 
  

• Mark Graber on Their Fourteenth Amendment, Section 3 and Ours, from his book in progress, The Forgotten Fourteenth Amendment (Just Security).
  

• From the Washington Post's "Made by History" section: Teal Acardi (Ph.D. candidate, Princeton University), "Texas’s power grid failing shows why Biden needs to go big on infrastructure"; Laura Briggs (University of Massachusetts, Amherst) on Biden's immigration bill and repairing the harms of family separation.
  

• Daniel Sharfstein, Vanderbilt University, will speak in the Dean’s Lecture Series on Racial Justice and Discrimination on February 25, 12:00pm - 1:00pm CST (1:00pm - 2:00pm EST).
  

• On February 26, “The History of Central Banking in Hong Kong, Mainland China and Singapore,” in the Greater China Legal History Seminar Series at CUHK LAW.  More.
  

• On March 5, 2021, from 13:15 - 15:00, Prof. Dr. Thomas Duve, Max Planck Institute for Legal History and Legal Theory, will conduct, in German, the seminar Methods of Legal History  It will focus on “methodological issues that are especially important for the work in the department ‘Historical Normativity.’”  Registration for the event until February 25: sekduve@rg.mpg.de
  

• 
  Aimée Craft, University of Ottawa, receives CBA President’s Award for her work on Canadian indigenous law, including Breathing Life Into the Stone Fort Treaty (UBC Press, 2013) (CBA National).

• The deadline for submissions for the 2022 annual meeting of the American Historical Association has been extended to Monday, March 8.  More. 
  

• "The State Historical Society of Iowa has officially opened the 2021-2022 cycle of applications for our Research Grants for Authors."  More.
  

• Jay Sexton, University of Missouri, on political violence in American history, in conjunction with the Missouri Humanities Council panel, “A Nation Divided: How One Decade Can Change Everything" (Columbia Missourian).
  

• ICYMI: Laura Edwards on Section 3 of the 14th Amendment (IBT).  James Goodman wants us to stop calling slavery America's "original sin" (CNN). The KKK Act and the Sack of the Capitol (WaPo). The National Security Archive et. al. v. Donald J. Trump saves White House records (NSA). Larry Wilmore on “Amend: The Fight for America” (K5).  More on "Amend," in Bustle.  Can't have a Green New Deal without a CCC (Civilian Climate Corps) (Next City).  More on section 3 of the Fourteenth Amendment (with Edwards, Hemel, and Magliocca) (abc6).
  

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

Tippet on Enslaved Agents

Elizabeth Chika Tippett, University of Oregon School of Law, has posted Enslaved Agents: Business Transactions Negotiated by Slaves in the Antebellum South:

This article explores the law of agency as applied to enslaved workers in the antebellum South between 1798 and 1863. In particular, I examine legal disputes involving the delegation of agency power to enslaved workers. Southern courts generally accepted that an enslaved worker could serve as business agent for his or her slaveholder, which often meant binding a third party to a transaction negotiated or performed by an enslaved person.

These cases provide a window into business practices in slave states, where enslaved workers conducted business on behalf of slaveholders in a variety of contexts. While agency law served the economic interests of individual slaveholders – who could then avoid hiring paid labor for the same work – it also at times conflicted with the ideology of white supremacy and the associated southern laws meant to enforce racial dominance. Agency law bestowed the slaveholder’s power on an enslaved worker in transactions with third parties, often white businessmen who later sought to unwind the deal. The law of agency also conflicted at times with state laws that prohibited sales and business dealings with slaves. Nevertheless, southern courts frequently sided with slaveholders, who insisted that their powers could be delegated to enslaved workers.

--Dan Ernst

Nunley's "At the Threshold of Liberty"

Tamika Y. Nunley, Oberlin College, has published At the Threshold of Liberty: Women, Slavery, and Shifting Identities in Washington, D.C. (University of North Carolina Press, 2021):

The capital city of a nation founded on the premise of liberty, nineteenth-century Washington, D.C., was both an entrepôt of urban slavery and the target of abolitionist ferment. The growing slave trade and the enactment of Black codes placed the city’s Black women within the rigid confines of a social hierarchy ordered by race and gender. At the Threshold of Liberty reveals how these women--enslaved, fugitive, and free--imagined new identities and lives beyond the oppressive restrictions intended to prevent them from ever experiencing liberty, self-respect, and power.

Consulting newspapers, government documents, letters, abolitionist records, legislation, and memoirs, Tamika Y. Nunley traces how Black women navigated social and legal proscriptions to develop their own ideas about liberty as they escaped from slavery, initiated freedom suits, created entrepreneurial economies, pursued education, and participated in political work. In telling these stories, Nunley places Black women at the vanguard of the history of Washington, D.C., and the momentous transformations of nineteenth-century America.

Here is an endorsement:

"Tamika Y. Nunley has written a nuanced, humane, and powerful history of Black women's freedom-making in Washington, D.C. At the Threshold of Liberty is a major contribution."--William G. Thomas III, author of A Question of Freedom: The Families Who Challenged Slavery from the Nation’s Founding to the Civil War

–Dan Ernst

Van Hulle's "Britain and International Law in West Africa"

Inge Van Hulle, Tilburg University, has just published Britain and International Law in West Africa: The Practice of Empire (Oxford University Press).  The book appears in the OUP series, The History and Theory of International Law.  Here is the abstract:

Africa often remains neglected in studies that discuss the historical relationship between international law and imperialism during the nineteenth century. When it does feature, focus tends to be on the Scramble for Africa, and the treaties concluded between European powers and African polities in which sovereignty and territory were ceded. Drawing on a wide range of archival material, Inge Van Hulle brings a fresh new perspective to this traditional narrative. She reviews the use and creation of legal instruments that expanded or delineated the boundaries between British jurisdiction and African communities in West Africa, and uncovers the practicality and flexibility with which international legal discourse was employed in imperial contexts. This legal experimentation went beyond treaties of cession, and also encompassed commercial treaties, the abolition of the slave trade, extraterritoriality, and the use of force.

The book argues that, by the 1880s, the legal techniques that were fashioned in the language of international law in West Africa had largely developed their own substantive characteristics. Legal ordering was not done in reference to adjudication before Western courts or the writings of Western lawyers, but in reference to what was deemed politically expedient and practically feasible by imperial agents for the preservation of social peace, commercial interaction, and humanitarian agendas.

--Dan Ernst

Job Alert: History of Slavery in the City of London

[We have the following announcement.  DRE]

Postdoctoral Researcher: History of Slavery in the City of London, Nuffield College, University of Oxford

Nuffield College seeks a Postdoctoral Researcher to research the role of the City of London and its commercial institutions in the eco-system of the transatlantic slave trade and ownership. Co-funded by the global law firm Freshfields Bruckhaus Deringer LLP, and under the supervision of Professor Andrew Thompson (Professor of Imperial and Global History, Nuffield College), the researcher will contribute to the growing body of scholarly literature on British imperialism and its intersection with transatlantic slavery, exploring the past and bringing it into close dialogue with the present. 

H/t: American Historical Association

Pardo on Bankruptcy and Slavery in New Orleans

Rafael I. Pardo, Emory University School of Law, has posted On Bankruptcy’s Promethean Gap: Building Enslaving Capacity into the Antebellum Administrative State, which is forthcoming in the Fordham Urban Law Journal:

As the United States contends with the economic crisis triggered by the COVID-19 pandemic, federal bankruptcy law is one tool that can be used to resolve the financial distress suffered by individuals and businesses. When implementing this remedy, the question arises whether the law’s application should be viewed as limited to addressing private debt matters, without regard for the public interest. This Article answers the question by looking to modern U.S. bankruptcy law’s first forebear, the 1841 Bankruptcy Act, which Congress enacted in response to the depressed economic conditions following the Panic of 1837. That legislation created a judicially administered system that nationalized bankrupts’ assets, some of which featured prominently in the business of slavery. This Article focuses on a specific episode from New Orleans, which at the time was the nation’s third-most-populous city, had the nation’s largest slave market, and had one of the nation’s largest money markets. One of the bankruptcy cases commenced in that city involved the administration and sale of Banks Arcade, which was a premier commercial exchange for auctioning enslaved Black Americans. This history about how the federal administrative state restructured one component of the U.S. slavery complex should prompt critical reflection on how present-day bankruptcy law manages the fallout from a financial crisis. This Article concludes that courts have the authority to permit the public to advocate for its interests in distressed assets redeployed through the federal bankruptcy system.

–Dan Ernst

Tulsa Law Review's Annual Book Review Issue

Tulsa Law Review 55:2 (2020), a book review issue, includes essays of interest to legal historians:

Reassessing the Historical Foundations of Originalism, by Lee Borocz-Johnson

The Second Creation: Fixing the American Constitution in the Founding Era, by Jonathan Gienapp

Forging the American Nation, 1787-1791: James Madison and the Federalist Revolution, by Shlomo Slonim

Triangulating Law and Political-Economic Development, by Jonathan Chausovsky

The Contract Clause: A Constitutional History, by James Ely Jr.

Child Labor in America: The Epic Struggle to Protect Children, by John A. Fliter

Reconstructing the National Bank Controversy: Politics and Law in the Early American Republic, by Eric Lomazoff

Popular Legitimacy: A Tenuous Proposition, by Emily Pears

Building a Revolutionary State: The Legal Transformation of New York, 1776-1783, by Howard Pashman

We Have Not a Government: The Articles of Confederation and the Road to the Constitution, by George Van Cleve

The Many Faces of American Captivity and Its Legal Matrix: A Review Essay, by Christian Pinnen

University, Court, and Slave: Pro-Slavery Thought in Southern Colleges and Courts and the Coming of the Civil War, by Alfred L. Brophy

Supreme Injustice: Slavery in the Nation's Highest Court, by Paul Finkelman

Borderlands of Slavery: The Struggle over Captivity and Peonage in the American Southwest, by William Kiser

Free Speech Idealism, by Timothy Zick

The Taming of Free Speech: America's Civil Liberties Compromise, by Laura Weinrib

Speak Freely: Why Universities Must Defend Free Speech, by Keith E. Whittington
 
Who Is Responsible for Presidential Supremacy? by Kathleen Tipler

Supreme Court Expansion of Presidential Power: Unconstitutional Leanings, by Louis Fisher

President Obama: Constitutional Aspirations and Executive Actions, by Louis Fisher

Reclaiming Accountability: Transparence, Executive Power, and the U.S. Constitution, by Heidi Kitrosser

--Dan Ernst

Weekend Roundup

• The Viennese Legal History Society (Wiener Rechtsgeschichtliche Gesellschaft) holds its events online via Zoom during the pandemic and opens the talks now for the wider public.  On 19 January, at 18:50 Vienna, Professor Thomas Simon (Vienna) will give a talk in German with the title: "Christlich", "deutsch", "ständisch": Die sog. "Maiverfassung" 1934 und der "Autoritäre Ständestaat". Versuch einer verfassungsgeschichtlichen Einordnung.  Zoom link.

• Shannon McSheffrey, Concordia, on Disorder, Riot, and Governance in Early Tudor London: Evil May Day, 1517, in the Late Medieval Seminar at the Institute of Historical Research at the University of London, February 5, 2021, 5:30PM - 7:00PM.
  

• On Monday, March 8, 2021, 12:00pm to 1:00pm, former LHB Guest Blogger Thomas McSweeney, William and Mary Law School, will discuss his book Priests of the Law: Roman Law and the Making of the Common Law's First Professionals (Oxford University Press, 2020) with Elizabeth Papp Kamali, Harvard Law School.  Register and more here.

• The University of Nebraska, Lincoln is advertising a postdoctoral research associateship for “a project manager of a collaborative team collecting and processing habeas corpus petitions to design and populate a robust database that will allow researchers to demonstrate the many interpersonal and institutional relationships evident in these claims to freedom while also assessing their significance and value within the larger body of American jurisprudence.”  More.
  

• New Books in Law has an interview with Virginia Torrie on her book Reinventing Bankruptcy Law, which we've previously spotlighted.
  

• Jane Dailey, University of Chicago,  discusses her new book, White Fright: The Sexual Panic at the Heart of America’s Racist History, and "what America’s history with lynch mobs can teach us about the attack on the Capitol" with the ABA Journal’s Lee Rawles on Legal Talk Network. 
  

• Nial Osborough, "Ireland’s greatest legal historian," is dead (Irish Times).
  

• The Supreme Court Historical Society has lesson plans for its video, "The Supreme Court and the 1876 Presidential Election."  
  

• The Organization of American Historians has issued a statement January 6 attack on the U.S. Capitol.
  

• “The Society for U.S. Intellectual History is now accepting nominations for the 2020 Dorothy Ross Prize for best article in US intellectual history by an emerging scholar."
  

• Over at Environment, Law, and History, David Schorr notices Thomas Le Roux’s extended review of Chad Montrie's The Myth of Silent Spring: Rethinking the Origins of American Environmentalism (U Cal Press, 2018).
  

• 
  Supervisory Curator Herman Eberhardt of the Franklin D. Roosevelt Library explores “historic artifacts, documents, photographs, and film from the inaugural ceremonies of 1933, 1937, 1941, and 1945" on January 20 at 2PM.  More.
  

• Legal historical op-eds and other writings on self-pardons, the 25th Amendment, impeachment, Section 3 of the 14th Amendment and related matters are legion.  Here is a smattering: The US Senate History office on the post-resignation impeachment of William Belknap. William Eskridge says self-pardoning isn't a thing (WaPo).  Mark Graber on the second impeachment (WBALTV).  How scholars interpret "treason, bribery, or other high crimes and misdemeanors" (NatGeo).  John D. Feerick on our nation's history with presidential inability and succession (The Hill).  Eric Foner and Gerard N. Magliocca on Section 3 of the Fourteenth Amendment (WaPo).  Joanne Freeman ad Geoffrey Stone on sedition (NYT).  Gregory Ablavsky compares the assault on the Capitol with the Wilmington Massacre of 1898 (Stanford News).
  

• Also Phil Magness and the Pacific Legal Foundation on the 1619 Project (PLF).
  

• Update: Shirley Abrahamson's NYT obituary.
  

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

Weekend Roundup

• Martha S. Jones published an op-ed in WaPo and was prominently quoted in an NYT story this week about the discovery that Johns Hopkins owned enslaved persons. They are the fruit of the project she directs, Hard Histories at Hopkins.
  

• The African American History Collection of the William L. Clements Library at the University of Michigan relating to slavery, abolition movements, and various aspects of African American life, largely dating between 1781 and 1865, is now online. 
  

• 

  William O. Douglas (LC)
  

  We are grateful to John Q. Barrett for bringing to our attention this quite arresting interview of William O. Douglas from 1966, which we understand he found here.
  

• The Evolution of Judicial Retirement, by Jake Kobrick, another in a series of posts by the Federal Judicial Center, went up this week.
  

• The Harvard Law School Library’s Nuremberg Trials Project supplies documents for “The World’s Biggest Murder Trial: Nuremberg" (Harvard Law Today).

• LHB October guest blogger Stefan B. Kirmse will have a virtual book event on The Lawful Empire: Legal Change and Cultural Diversity in Late Tsarist Russia on Monday, Dec.15 at 6-7.30pm Central European Standard Time. You can register here. 

• The latest from Lawbook Exchange: Scholarly Law and Legal History.
  

• LHB congratulates Risa Goluboff on her reappointment as dean of UVA Law.
  

• Local Legal History from Washington County, PA and Madison County, TX.
  

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

Cromwell Dissertation Prize to Tycko

We have word that the William Nelson Cromwell Dissertation Prize, awarded by the trustees of the William Nelson Cromwell Foundation on the recommendation of the Advisory Committee on the Cromwell Prizes of the American Society for Legal History, has gone to Dr. Sonia Tycko, Oxford University,  for “Captured Consent: Bound Freedom of Contract in Early Modern England and English America.”  From the recommendation of the ASLH committee:

In an extraordinarily creative and imaginative dissertation, "Captured Consent: Bound Service and Freedom of Contract in Early Modern England and English America," Sonia Tycko explores the repeated appearance of consent as part of the meaning of compulsory service in the early modern period. … Tycko forces us to reconsider the very foundations of consent and contract and makes a signal contribution to the historiography on contract, labor, and freedom. Tycko also offers nuanced readings of an impressive array of primary sources and reveals the social realities against which a vocabulary about contract arose in particular labor relationships, from indentured servitude to military impressment to kidnapping. She mines documents that others might skim and brings to the surface the way in which the very words betray underlying power dynamics. The important transatlantic lens persuasively establishes her argument as part of larger seventeenth-century English assumptions, in Great Britain and the British colonies. This dissertation rewards the reader on every page-and, impressively, becomes even more interesting on rereading. Tycko's dissertation serves as a model of the well-crafted and carefully executed dissertation in legal history.

–Dan Ernst

Thomas's "Question of Freedom"

William G. Thomas III, the John and Catherine Angle Chair in the Humanities and Professor of History at the University of Nebraska, has published A Question of Freedom: The Families Who Challenged Slavery from the Nation’s Founding to the Civil War (Yale University Press):

For over seventy years and five generations, the enslaved families of Prince George’s County, Maryland, filed hundreds of suits for their freedom against a powerful circle of slaveholders, taking their cause all the way to the Supreme Court. Between 1787 and 1861, these lawsuits challenged the legitimacy of slavery in American law and put slavery on trial in the nation’s capital.  
 
Piecing together evidence once dismissed in court and buried in the archives, William Thomas tells an intricate and intensely human story of the enslaved families (the Butlers, Queens, Mahoneys, and others), their lawyers (among them a young Francis Scott Key), and the slaveholders who fought to defend slavery, beginning with the Jesuit priests who held some of the largest plantations in the nation and founded a college at Georgetown. A Question of Freedom asks us to reckon with the moral problem of slavery and its legacies in the present day.

The New York Times review, which hails the book as "a rich, roiling history that Thomas recounts with eloquence and skill," is here.

--Dan Ernst

SAPD 34:2

Studies in American Political Development 34:2 (October 2020) is open access through the end of the month:

Racism Is Not Enough: Minority Coalition Building in San Francisco, Seattle, and Vancouver
Jae Yeon Kim

The Political Effects of Policy Drift: Policy Stalemate and American Political Development
Daniel J. Galvin, Jacob S. Hacker

Privatizing Employment Law: The Expansion of Mandatory Arbitration in the Workplace
 Sarah Staszak

Democratic Representation of all “the People”: Antislavery Petitions in the U.S. Senate
John D. Griffin, Grace Sager 

--Dan Ernst

Weekend Roundup

• Congratulations to Samantha Barbas, University at Buffalo Law, on her receipt of an NEH grant for a "sociolegal history of New York Times Co. v. Sullivan."  More.  

• New and ungated in Studies in American Political Development: “No Bodies to Kick or Souls to Damn”: The Political Origins of Corporate Criminal Liability, by Anthony Grasso, Rutgers University.

• As a faculty member at Georgetown University faculty, this one shouldn't have surprised me, but it did.  @dbqur

• In Nursing Clio's The Deathbed series: Julie Hardwick on abortion and infanticide in 17th-18th-c. France. 

• The CFP for the next conference of the Society for Historians of American Foreign Relations, to be held in a hybrid format in Arlington, VA, June 17-20, 2021, is here.

• Constitution Day is around the corner.  (We never thought we'd say this, but, "Robert Byrd, would that you were with us in this hour!")  Boston College’s Clough Center for the Study of Constitutional Democracy is observing the date with The Equal Rights Amendment: A Constitution Day Conversation, with Julie Chi-hye Suk and Katharine Young.
  

•  The United States Capitol Historical Society announced that its 2020 National Heritage Lecture, delivered virtually on September 14, 2020, will be a discussion of “one of the most far-reaching accomplishments of mid-20th century American government: The comprehensive and strategic investment in our transportation infrastructure.”   The Supreme Court Historical Society and the White House Historical Association are also sponsors of the event.  More.
  

• ICYMI: A review of James Whitman’s Hitler’s American Model (Concord Monitor).  Danielle Allen on The Flawed Genius of the Constitution (Atlantic)
  

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

Kennington to Speak on St. Louis Freedom Suits

The Field House Museum of St. Louis, Missouri, continues its “online programming with a Speaker Series event on August 19 at 7 p.m.   Dr.
Kelly Kennington, author and associate professor at Auburn University, will be joining us [for a "live-stream author talk"] on her book In the Shadow of Dred Scott: St. Louis Freedom Suits and the Legal Culture of Slavery in Antebellum America.  Drawing on the case files of more than three hundred enslaved individuals who, like Dred Scott and his family, sued for freedom in the legal arena of St. Louis, she explores new perspectives on the legal culture of slavery and the negotiated processes involved in freedom suits.”  More.

--Dan Ernst

Weekend Roundup

• Two new posts at Talking Legal History.  Guest Host Lesa Redmond, a first year student in the Department of History at Duke University, interviews Paul Finkelman, President of Gratz College, on his recently published Defending Slavery: Proslavery Thought in the Old South, 2d ed. (Bedford/St. Martin’s, 2020).  Siobhan M.M. Barco discusses Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana (Cambridge University Press, 2020) with authors Alejandro de la Fuente and Ariela Gross.

• Congratulations to Annette Gordon-Reed on her University Professorship at Harvard University (Crimson; Gazette).

• Now available as a free download, Racism in America: A Reader, with a Foreword by Annette Gordon-Reed. (HUP).  “At Harvard University Press, we’ve had the honor of publishing some of the most influential books on the subject. The excerpts in this volume—culled from works of history, law, sociology, medicine, economics, critical theory, philosophy, art, and literature—are an invitation to understand anti-Black racism through the eyes of our most incisive commentators.”  TOC here.

• Also available as a free download, the latest issue of the journal Capitalism, including the article Capitalism when Labor was Capital: Slavery, Power, and Price in Antebellum America, by Caitlin Rosenthal.

• We've learned from Cambridge University Press that, after a Covid-19 related delay, the latest Law and History Review has been printed and will soon be mailed.

• The directors of the FDR and LBJ Libraries discuss the friendship between the two presidents on Wednesday, August 5, at 2pm on Facebook Premiere in a session entitled The New Deal to the Great Society.

• The National Constitution Center announces the opening of its exhibit The 19th Amendment: How Women Won the Vote on August 26.

• Much of interest in the latest (34:1) issue of Studies in American Political Development.  Check out, for example, Paul Musgrave, “Bringing the State Police In: The Diffusion of U.S. Statewide Policing Agencies, 1905–1941.”

• Now available as an e-pub on Amazon Kindle: Law's Picture Books: The Yale Law Library Collection.

• White Supremacy and Historical Memory: Collegiate and Suburban Division.  University of Chicago and Stephen A. Douglas. UNC Chapel Hill and Charles B. Aycock, Julian S. Carr and Josephus Daniels.  Chevy Chase Advisory Neighborhood Commission and Francis G. Newlands.

• Cindy Ewing (University of Missouri) has won the Lynne Rienner Publishers Award for Best Dissertation (ISA) and the Oxford University Press USA Dissertation Prize in International History (SHAFR) for her 2018 dissertation (Yale), "The Asian Unity Project: Human Rights, Third World Solidarity, and the United Nations, 1945-1955."

• Fei-Hsien Wang (Indiana University) received a commendation from the Society for the History of Authorship, Reading, and Publishing's DeLong Book History Prize for Pirates and Publishers: A Social History of Copyright in Modern China. The book was featured in the International Society for Chinese Law and History's last Summer Book Talk on July 30.

• From the Washington Post's "Made by History" section: Lindsay M. Chervinsky (Institute for Thomas Paine Studies/nternational Center for Jefferson Studies), "George Washington invoked executive privilege. But he’d reject Barr’s version"; Dana Frank (University of California, Santa Cruz), "Congresswomen of color have always fought back against sexism"; and more.  

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

Park on Conquest, Slavery and the Property Course

My Georgetown Law colleague K-Sue Park has posted Conquest and Slavery as Foundational to the Property Law Course:

This chapter addresses the foundational place of the histories of conquest and slavery to American property law and the property law course. It begins by briefly reviewing how these topics have been erased and marginalized from the study of American property law, as mentioned by casebooks in the field published from the late nineteenth century to the present. It then shows how the history of conquest constituted the context in which the singular American land system and traditional theories of acquisition developed, before turning to the history of the American slave trade and the long history of resistance to Black landownership that its abolition fueled. This chapter suggests ways to correct for the tendency of traditional property law curricula to focus exclusively on English doctrines regulating relations between neighbors, rather than the unique fruits of the colonial experiment -- the land system that underpins its real estate market and its structural reliance on racial violence to produce value.

--Dan Ernst