Francois and Hershkopff on Pennoyer and Redemption

Aderson Francois, Georgetown University Law Center, and Helen Hershkoff, New York University School of Law, have posted Pennoyer, Due Process, and the End of Reconstruction, which is forthcoming in the forthcoming in the New York University Law Review:

In 1877, the United States withdrew the last of its troops from the states of the former Confederacy and returned the rebel states to “home rule”—actions that are said to be a part of the “Compromise” by which the Electoral Commission of 1876 resolved that year’s contested presidential election and placed the Republican candidate, Rutherford B. Hayes, in the White House. Over the next generation, the country underwent a case of collective amnesia about the causes of the Civil War, in thrall to a “Lost Cause” myth that the South seceded to protect the heroic ideal of states’ rights and not to preserve racial chattel slavery. As is well known, during this period the national government stopped enforcing the civil rights of Black people; the Supreme Court gutted the emancipatory potential of the Thirteenth, Fourteenth, and Fifteenth Amendments; and by law and practice systems of racial subordination became entrenched, as the nation came to celebrate Confederate officials in monuments and institutions.

1877 also is the year the Court heard argument in Pennoyer v. Neff, shortly after those Justices who participated in the Electoral Commission returned to the bench. Pennoyer is of course a case about personal jurisdiction and is a staple of the first-year Procedure course. Scholars treat the decision as an exemplar of formal reasoning, and their analyses of the decision likewise are formal in approach, detached from the concerns of the Civil War and the end of Reconstruction.  By examining Pennoyer in the context of the social and political issues of this period, this Article aims to make sense of the decision’s “central mystery”: why the Court associated its territorial theory of personal jurisdiction with the Due Process Clause of the Fourteenth Amendment—a move that scholars remain unable to explain or justify.

In particular, we argue that Pennoyer’s invocation of the Fourteenth Amendment  helped to set a jurisprudential baseline about state sovereignty that became the conceptual starting point of arguments about national incapacity to enforce the rights of Black people, just as Lochner later set the baseline for arguments about state incapacity to regulate common law  property rights. Moreover, by enforcing rights under the Oregon Donation Act, a federal statute that explicitly excluded Black people from its benefits, Pennoyer rendered invisible for purposes of the Fourteenth Amendment the ways in which legal rules protected, enforced, and preserved property benefits for white people even in the face of de jure discrimination. And Pennoyer provided protection for landowners by making it more difficult for financiers to seize their land when debts came due. At a time when scholars and the Court currently are questioning whether to decouple personal jurisdiction from the due process foundation that is said to trace to Pennoyer, it seems worthwhile to ask how, when, and why they became intertwined in the first place, and what the Fourteenth Amendment gained and lost in the process. 

--Dan Ernst 

Revkin and Gramlick on Fiscal Policing in Civil War DC

Mara Revkin, Duke University School of Law, and Gage Gramlick, a JD candidate at Duke, have posted The Civil War Origins of Fiscal Policing: Evidence from the District of Columbia:

The rise of “fiscal policing” in the United States—the use of fines, fees, and forfeitures to extract revenue from civilian populations—is widely described in previous scholarship as a relatively recent development with roots in post-1970s municipal austerity policies. A smaller literature argues that the revenue-extracting function of American policing can be traced earlier to slave patrols before the Civil War and Reconstruction-era Black Codes in the South. But this Article is the first to show that fiscal policing in the North has roots a century deeper than the austerity account recognizes. We demonstrate this through a case study of the nation’s capital, drawing on an original dataset compiled from the annual reports of the Metropolitan Police of the District of Columbia from 1862 to 1877 to show that revenue extraction was not a subsequent corruption of the Metropolitan Police’s original crime-control purpose but a core feature of its institutional design from the outset. We supplement the quantitative data with contemporary newspaper accounts, congressional and city-council debates, and correspondence between the governing Board of the Metropolitan Police and the military and civilian authorities that shared jurisdiction over the city. Congress established the Metropolitan Police by statute in August 1861, less than four months after the Civil War began, in direct response to the population surge, jurisdictional uncertainty, and disorder that the war had already produced in the capital.

Our key finding is that the Metropolitan Police generated surplus revenue from its first full year of operation, and this fiscal logic not only continued but intensified after the war. Fine revenue nearly doubled from $32,532 in 1862 to $61,944 in 1865—the year the Board first declared the force a net revenue-producing institution, boasting to Congress that there was “probably no other community in our country whose police system produces a net revenue to its finances.” Revenue receded with wartime conditions but remained above the 1862 baseline in 1877, and fine cases rose from 31.9 percent of all arrests in 1862 to a peak of 45.5 percent in 1867, two years after the war ended. The force grew with its revenue: in 1866, Congress authorized a 33 percent increase in its size from 150 to 200 patrolmen. We explain this pattern through two mechanisms. The first is wartime state-building: extending Charles Tilly’s account of how war forges extractive institutions, we show that the Civil War simultaneously created the governance and security crisis that necessitated a new police force and—by exhausting congressional appropriations on military spending—ensured that the force was designed to generate the revenue its own survival required. The second is bureaucratic autonomy: like other nascent administrative agencies, the Metropolitan Police Board had an existential incentive to demonstrate its value to skeptical principals, and it quickly recognized that surplus revenue from fines, forfeitures, and licensing fees was the performance metric most legible and persuasive to Congress and the city councils that controlled its budget—more so than improvements in public safety, which were harder to achieve and measure. The enforcement burden also fell unevenly—across national origin, race, gender, and civil-military status—in ways that shifted during and after the war. Soldiers accounted for more than a quarter of arrests in 1862 but generated no revenue—they were turned over to military authorities rather than fined—and their share declined steadily as the Board came to see such arrests as labor-intensive, fiscally worthless, and a source of friction.

Among civilians, Irish- and German-born immigrants were overrepresented during the war years. We find no clear racial pattern in per-capita arrest rates during the war, but disparities emerge after its end: between 1870 and 1877, Black residents were arrested at 1.4 to 1.6 times the non-Black per-capita rate. Women’s share of arrests rose from 14.2 percent in 1862 to a wartime peak of 22.7 percent in 1865, driven by policing of sex work. These findings relocate the origins of American fiscal policing from the late twentieth century to the 1860s, reveal a Northern and federal pathway that is distinct from Southern institutions previously studied, and provide historical context for contemporary debates over the constitutional limits of fines. More broadly, the Article models what can be gained by studying the United States as a post-conflict society, bringing to American legal history the theories and methods that political scientists have long used to study civil wars and state-building in other countries. 

--Dan Ernst 

Mazzone on the Removal under the Confederate Constitution

Jason Mazzone, University of Illinois College of Law, has posted The Unitary Executive and the Decisions of 1789 and 1861, which appears in the UC Davis Law Review Online:

Debates over the constitutional power of the President to remove executive officers are almost as old as the Republic itself. These debates continue today in the academic literature — with a vast body of writing on the constitutional basis (if any) for a presidential removal power, its scope, and the authority (if any) of Congress to regulate the power — and at the Supreme Court, which has decided a series of removal cases in recent years, and which has some removal cases on its current docket. Virtually every discussion (regardless of the conclusion reached) of the power of the President to remove executive officers invokes the so-called Decision of 1789. This Essay does also. But it focuses additionally on another important decision: that of 1861. In that year, the states that had seceded from the Union adopted their own permanent constitution. The Constitution of the Confederate States mimicked and repeated (with modifications) many of the provisions of the federal Constitution. It also included something the federal Constitution had not: a specific provision specifying the scope of the powers of the President to remove executive officers. Unusual though it might seem to turn for guidance to the Confederate Constitution — a charter written and ratified by traitors — the exercise has some payoff. It helps us identify some possible conceptions of presidential removal authority (under the federal Constitution) and to assess the relative merits of alternatives. 

--Dan Ernst 

Pope on Class and the Original Meanings of the 13th and 14th Amendments

James Gray Pope, Rutgers Law School, has posted Economic Class and the Original Meanings of the U.S. Thirteenth and Fourteenth Amendments:

This article suggests that present-day judicial interpretations of the U.S. Thirteenth and Fourteenth Amendments depart sharply from their original meanings on questions of class power. I propose that the concept of "slavery to society," hitherto largely ignored, lay at the heart of the framers' thinking about class and race. By late 1865, leading Republicans held that the Thirteenth Amendment directly banned not only chattel slavery and physically or legally coerced labor (its full scope according to contemporaneous Democrats and most present-day courts), but also slavery to society. Unlike chattel slavery, which could be eliminated by conferring the freedom of contract, slavery to society operated through the formal freedom of contract, tilting the background rules and customs governing market relations to enable a ruling caste or class to dominate and exploit a subordinate caste or class. With this in mind, the Republicans condemned both race-specific and facially race-neutral labor laws that, while respecting the formal freedom of contract, enabled capitalists to inflict on laborers a form of slavery or involuntary servitude. Concerning the Fourteenth Amendment, I propose that the Republicans' support for maximum hours laws during the two years between that Amendment's proposal and ratification indicates that a vast chasm separated their concept of labor freedom from the laissez-faire version enforced by American courts during the so-called Lochner Era.

--Dan Ernst 

Federal History 18

Federal History 18 (2026) has been published.  Here is the TOC:

Editor's Note 

Benjamin Guterman

Roger R. Trask Lecture

“Girl From the North Country”: Pursuing History and Finding Community in the Nation’s Capital
Kristin L. Ahlberg

Articles

Bind Together Whom? The Internal Improvements Debate and Native Dispossession in the Early Republic
James R. Stocker

1870s House Investigations of Bureau Commissioner Oliver O. Howard and the Retreat from Reconstruction
Peter A. Porsche

Woodrow Wilson, American Power, and International Order at the Paris Peace Conference, 1918–1919
Peter Jackson

A Troublesome Reckoning: The Rediscovery of the U.S. Postwar Cover-up of Unit 731 and the Ethical Threat to Democracy
Emily Matson

Patients-in-Chief: The Public History of the President’s Physical Exam
Jacob M. Appel

Interview

An Interview with Sheyda F.A. Jahanbani
Sean T. Byrnes

Law & Constitution Roundtable

The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms, by Alison L. LaCroix
Introduction: Gerald Leonard, Boston University
Review: Austin Allen, University of Houston–Downtown
Review: James A. Gardner, University at Buffalo School of Law
Review: Grace Mallon, Lady Margaret Hall, University of Oxford
Review: Gautham Rao, American University
Author’s Response: Alison L. LaCroix, University of Chicago Law School

Reviews in Legal History

Richard Primus, “Sins and Omissions: Slavery and the Bill of Rights”
Terri Diane Halperin

Roger A. Bailey, “‘Intercourse . . . of the Most Friendly Nature’: The U.S. Navy, State Power, and William Walker’s Invasion of Mexico,     1853–1854”
Stephen J. Rockwell

Anna O. Law, “The Civil War and Reconstruction Amendments’ Effects on Citizenship and Migration”
Kelly Marino

Andrea Scoseria Katz, “A Regime of Statutes: Building the Modern President in Gilded Age America (1873–1921)”
Benjamin Guterman    

Benjamin Wetzel, “Theodore Roosevelt and the Unionist Memory of the Civil War: Experience, History, and Politics, 1861–1918”
Evan C. Rothera

Hardeep Dhillon. “The Making of Modern US Citizenship and Alienage: The History of Asian Immigration, Racial Capital, and US Law”
Amelia Flood

Kathryn E. Kovacs. “From Presidential Administration to Bureaucratic Dictatorship” 
Lisa K. Parshall

--Dan Ernst

Gans on Black Conventions during Reconstruction

David Gans, Constitutional Accountability Center, has published Forgotten Framers: Black Conventions and the Second Founding, which is forthcoming in the Stanford Law Review:

This Article tells the forgotten story of the Black Conventions of the Reconstruction era, examining convenings of Black Americans across the nation during the time when the Thirteenth, Fourteenth, and Fifteenth Amendments were under consideration. Invoking the promises of liberty and equality contained in the Declaration of Independence, these conventions insisted on Black Americans' right to respect and dignity, fought for control of their bodies and their right to be full members of the body politic, including at the polls, and demanded an end to racial prejudice and violence that kept them in a subjugated status. Through their relentless activism, Black Americans repeatedly pressed white Americans to make the United States into a multiracial democracy that guaranteed fundamental rights, protection, and equal citizenship as an American birthright. In large measure, the Amendments that produced our Second Founding bore the imprint of this constitutional activism. 

While critical to understanding the meaning of the Reconstruction Amendments, this history has never gotten its due. Dominant judicial and scholarly accounts of the text and history of the Reconstruction Amendments privilege elite white understandings, presenting history as if white voices were the only ones that mattered. As this Article demonstrates, this impoverishes our understanding of the Reconstruction Amendments and ignores how the Black Convention movement of the Reconstruction era shaped the transformational guarantees in those Amendments. Grappling with the work of the Black Conventions can help generate an inclusive constitutionalism, deepen our understanding of the text and history of the Reconstruction Amendments, provide resources to resolve current constitutional disputes, and help recover fundamental constitutional principles the Supreme Court has long betrayed.  

--Dan Ernst 

JCWE: Historians of Crisis in a Moment of Crisis

The Journal of the Civil War Era 16:1 (March 2026) is a special issue of interest to legal historians, assembled by its editors, Kate Masur, Northwestern University, and Gregory Downs, University of California, Davis.  In addition to a review essay and book reviews, it includes the following:

What Is To Be Done? Historians of Crisis in a Moment of Crisis
Gregory P. Downs, Kate Masur

Burrowed in the Bloodline: The Stories That Sustain Me
Ryan W. Booth

The Specter of the Fugitive Slave Act of 1850 Today
Justene Hill Edwards

Parodic Exaggeration, Transparent Lying, and Conspiracy Thinking in US History
Elaine S. Frantz

A-Mouldering in Our Graves?
John W. Hall

Survival with Sanity: Sarah Cook, Black Optimistic Realist
Scott Hancock

Lessons From My Grandfather's FBI File
Martha S. Jones

Slouching Towards Arlington House
W. Caleb Mcdaniel

The Current Situation of 2025: Thoughts on Media, the Public Sphere, and Education
Scott Reynolds Nelson

Storytelling, Digital Archives, and Black Women's Reproductive History in Real Time
Tamika Y. Nunley

A Guide to Surviving Interesting Times: Lessons from an Unpredictable Past
Erika Pani

We the People State of Mississippi": Letter Writing, Archiving, and Democracy from Reconstruction to Today
Lindsey R. Peterson

In 2025, an Echo of the 1800s: The Fight for Black Citizenship in the Chickasaw and Choctaw Nations
Alaina E. Roberts

Habits of Mind: How History Teaches Humility
Aaron Sheehan-Dean

Empathy, Humility, and Good Faith: Studying History in Times of Crisis
Margaret M. Storey

Meeting the Moment at Elizabeth City State University
Melissa N. Stuckey

The Freedman's Memorial
Robert K. Sutton

Exceptional Times
Michael Vorenberg

The Civil War's Unfinished Business
Fay A. Yarbrough

--Dan Ernst

Black on Education and State Constitutions in Reconstruction

Griffin Black has recently published Reconstruction State Constitutional Conventions and the Rebirth of American Schooling as a student note in the Yale Law Journal:

A rebirth of American education occurred in the state constitutional conventions of the Reconstruction South. At a moment of national constitutional reformation, biracial coalitions of delegates constitutionalized universal public-school systems, viewing them as a core component of remaking their states in the image of the U.S. Constitution. These delegates succeeded in keeping their constitutions free from the language of segregated schooling. This ill-understood history severely troubles the Supreme Court’s jurisprudence of the schoolhouse. This Note fills gaps in the ongoing conversation emanating from the Court about the relationship between our nation’s history and its current educational landscape.

--Dan Ernst 

Weekend Roundup

• Reminder: at noon on September 10, the Supreme Court Historical Society will sponsor a virtual lecture and conversation with John Q. Barrett, “Away Without Leave but Back in Washington, Briefly: Nazi Prosecutor Justice Robert H. Jackson on the Road to Nuremberg, September 1945.”  Register here.  

• The Supreme Court Historical Society’s latest episode in its Breaking History video series treats “two extraordinary behind-the-scenes stories from the latest Journal of Supreme Court History” concerning Reed v. Reed (1971) and Miranda v. Arizona (1966)

• In an episode of Historians & Their Histories, the Massachusetts Historical Society spoke with Cornelia H. Dayton, University of Connecticut, about her her research into the life of John Peters, the husband of acclaimed poet Phillis Wheatley, as well as abour Professor Dayton’s “path to becoming an historian, her early interest in constitutional law, and the challenges of researching subaltern subjects, such as Peters, who left few firsthand accounts.”  The transcript is here.

• Over at ESCLH Blog: a post on the "(Dis)continuity of Legal Systems in Czechoslovakia, Hungary and Poland after WWII: Difficult Heritage." 

• On Monday, September 8, at 6:30 p.m. at Paul Sawyier Public Library in Frankfort, Kentucky, Thomas C. Mackey, University of Louisville emeritus, will discuss his book, Opposing Lincoln: Clement L. Vallandigham, Presidential Power, and the Legal Battle over Dissent in Wartime (State-Journal).  

• Also on Monday, September 8, Aziz Rana, BC Law, will give the 2025 Kops Freedom of the Press Lecture, "The Constitution in crisis: how Americans came to idolize a document that fails them," at Cornell University, from 12-1 p.m.  More.  

• In C-SPAN’s “Bell Ringer” series, Joseph Crespino, Emory University, talks about “the changes in society, politics, institutions and the U.S. Senate in the 20th and 21st centuries.”  

• Keith Whittington, Yale Law School, will deliver the Constitution Day address at Washington and Lee University at 5 p.m. on September 18 on “By Birth Alone: The Original Meaning of Birthright Citizenship in the Fourteenth Amendment" (More). 

• Notre Dame Law’s notice of the second ASLH/Notre Dame Graduate Legal History Colloquium.

• A columnist praises the appointment of Lee Strang to direct the new Salmon P. Chase Center for Civics, Culture, and Society at the Ohio State University because the center promises to address "the partisan biases that have oozed into the teaching of American history and civic responsibility" (Columbus Dispatch).   

• The 14th Amendment Center for Law and Democracy at the Howard University School of Law has launched a newsletter, The Refounding.

• ICYMI:  How a Chinese Laundryman Shaped US Civil Rights (KQED).  The Evolution of the Bail System in America (History). The Volatile History of Flag Burning in the US (History).  The "Founders Museum" from White House and PragerU blurs history, AI-generated fiction (NPR).  Speaking of Founders: How about the one who lost a leg?  (Smithsonian).  And there's no rest for the Madison revisionist: “'If we truly want to look at the birthplace of the United States Constitution, it’s not in Philadelphia, it’s on the second floor of this home,' Montpelier’s Director of Interpretation and Visitor Engagement Kyle Stetz said." (29News).

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

Weekend Roundup

• Over at JOTWELL, Bethany Berger (Iowa College of Law) has posted an admiring review of Alexandra Fay's "Courts of Indian Offenses, Courts of Indian Resistance," which is forthcoming in the Michigan Law Review. Sida Liu (University of Hong Kong) praises Jedidiah J. Kroncke's "Legal Complicity in an Age of Resurgent Authoritarianism," forthcoming in the Georgetown Journal of Legal Ethics. And Allison Brownell Tirres (University of San Francisco School of Law) spotlights Eric R. Schlereth's Quitting the Nation: Emigrant Rights in North America (2024).

• Columbia Law is offering two new legal history courses, The 14th Amendment, taught by Christina D. Ponsa-Kraus, George Welwood Murray Professor of Legal History, and Legal Conflict and Change During the Civil War and Reconstruction, taught by Kerrel Murray, Associate Professor of Law and Milton Handler Fellow.  

• At the back end of this episode of Strict Scrutiny, Kate Shaw (Penn Carey Law) chats with Serena Mayeri (Penn Carey Law) about Mayeri's new book Marital Privilege. 

• William Baude, University of Chicago Law, weighs in on birthright citizenship (Divided Argument). 

• Paul Moreno, Hillsdale College, reviews Private Finance, Public Power by Peter Conti-Brown and Sean H. Vanatta in "the Forever Bank Wars" (Law and Liberty). 

• ICYMI: Historians say the professional study of history ain't over until history is over (and it's never over) (WaPo). The National Review on the Japanese American Internment.  The Heritage Foundation on Separation of Powers at the Founding.

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

McKoski's "Lincoln's Favorite Judge"

Raymond J. McKoski, a retired Illinois Circuit Judge and adjunct professor at the University of Illinois Chicago School of Law, has published David Davis, Abraham Lincoln's Favorite Judge (University of Illinois Press):

One of Abraham Lincoln’s staunchest and most effective allies, Judge David Davis masterminded the floor fight that gave Lincoln the presidential nomination at the 1860 Republican National Convention. This history-changing event emerged from a long friendship between the two men. It also altered the course of Davis’s career, as Lincoln named him to the U.S. Supreme Court in 1862.

Raymond J. McKoski offers a biography of Davis’s public life, his impact on the presidency and judiciary, and his personal, professional, and political relationships with Lincoln. Davis lent his vast network of connections, organizational and leadership abilities, and personal persuasiveness to help Lincoln’s political rise. When Davis became a judge, he honed an ability to hear each case with complete impartiality, a practice that endeared him to Lincoln but one day put him at odds with the president over important Civil War–era rulings. McKoski details these cases while providing an in-depth account of Davis’s role in Lincoln’s two unsuccessful campaigns for U.S. Senate and the fateful run for the presidency.

The introduction and more are here.

--Dan Ernst 

Weekend Roundup

• 
  Salutations to the participants in the J. Willard Hurst Summer Institute in Legal History of the American Society for Legal History, which continues into next week at the University of Wisconsin-Madison under the direction of chairs John Fabian Witt and Michelle McKinley!  For some other reasons to join the ASLH, consider its Early Career (Virtual) Legal History Workshop, its Early Career Global Legal History Research Fellowships, and its just-announced Themed (Virtual) Legal History Workshops.

• Over at the LPE Blog, the symposium on Sandeep Vaheesan’s Democracy in Power: A History of Electrification in the United States continues. The most recent post, by William Boyd, is here.  

• The Minnesota Supreme Court Historical Society is hosting a one-hour CLE panel, A Dive Into Unitary Executive Theory: Presidential Powers and Limitations, on June 24 from 3-4 CDT in person at the Minnesota Judicial Center.  The panelists are Christine Chabot, Marquette University Law School; Heidi Kitrosser, Northwestern University Pritzker School of Law; and Nick Bednar, University of Minnesota Law School. 

• We hear there might still be spaces at next months Rare Book School, devoted to Medieval Manuscript Fragments: Cataloging & Discoverability, with Lisa Fagin Davis.

• From Time's "Made by History": Tom Hanchett on "The History of the Low-Income Housing Tax Credit—And How it Could Improve Trump’s ‘Big Beautiful Bill.’"  

• Via ESCH and H-Law, we have a CFP for the junior colloquium Invisible Actors in the Making of International Law (1750-2000) at Sciences Po/Center for History in Paris on November 27-28, 2025. 

• UC Irvine School of Humanities on its alumna, Stanford Law's Bernadette Meyler 

• Modern Criminal Law Review had a symposium on Chloë Kennedy’s Inducing Intimacy: Deception, Consent and the Law (Cambridge University Press, 2024).  A podcast version is here.

• ICYMI:  How Much Money Do Historians Make From Their Writing? (Contingent Magazine).  Kate Hampton on a Montana antidiscrimination case from 1881 (Daily Montana).  Manisha Sinha on Lincoln and the abolitionists (Unpopulist). John Yoo on Putting the Executive in "Unitary Executive" (Law & Liberty).  St. Louis's Old Courthouse (Ladue News).

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

Weekend Roundup

• Martha S. Jones and Kate Masur's amicus brief on birthright citizenship in a First Circuit immigration case.  They and others will participate in a Brennan Center event on the topic on June 12. 

• “Trust in the state: Negotiating legal and bureaucratic encounters," a special issue of the Journal of Legal Anthropology has published open access (H-Law).

• The Council of the ABA Section on Section of Legal Education and Admissions to the Bar has put out for notice and comment a proposal to double the the number of required credits of experiential education for JD graduates from 6 to 12.  One wonders what the move portends for enrollment in legal history courses and seminars.   

• Princeton University’s James Madison Program in American Ideals and Institutions has awarded graduating senior Ben Woodard the Stephen Whelan ‘68 Senior Thesis Prize for Excellence in Constitutional Law and Political Thought for “Nature National, Slavery Sectional: Southern Judges’ Choice for Freedom in Antebellum Legal and Political Culture.”  

• Lawbook Exchange's latest catalogue of Scholarly Law & Legal History, including some letters from Louis Brandeis to Max Lowenthal. 

• ICYMI: Ex parte Merryman and current immigration battles (Maryland Reporter).  Inside Kenya’s Judiciary Museum (Star).  A slideshow on the Scopes Trial (msn).  Harvard Relinquishes Photographs of Enslaved Individuals (Harvard Crimson).  A defense of Bruen's originalism (Volokh Conspiracy). 

• Update: William G. Ross on the centennial of Pierce v. Society of Sisters (JURIST).

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

Zietlow on Fugitive Slaves, Free Blacks, and Birthright Citizenship

Rebecca E. Zietlow, University of Toledo College of Law, has posted Fugitives From Slavery, Free Black Activists, and the Origins of Birthright Citizenship, which is forthcoming in the Mississippi Law Journal:

In 1852, Martin Delany, a free Black doctor, journalist, and antislavery activist wrote an influential treatise on the rights of free Black people in which he claimed, “We are Americans having a birthright citizenship….”   Ten years later, during the Civil War, Delany backed his words with actions by volunteering for the Union Army and recruiting Black soldiers for an army regiment.   Delany’s theory of birthright citizenship was shared by thousands of antislavery and Black civil rights activists in the antebellum era, including William Yates, who wrote the first treatise on the rights of free Black people in 1838, and Frederick Douglass, a fugitive from slavery who became one of the most prominent abolitionist leaders.   Black activists used the language of citizenship to claim their status as rights-bearing people who belonged to the community in which they live and to the national polity.  Fugitives from slavery crossed state borders in search of freedom and human rights. Their free Black allies argued that they were citizens by virtue of being born in the United States and, as citizens, were entitled to human rights. Free Black people emphasized their loyalty to the national polity and their willingness to sacrifice to prove their loyalty.  During the Civil War, fugitives from slavery and free Black people volunteered to serve in the Union army, risking their lives in support of the polity and proving their loyalty and eligibility for citizenship rights.  This Essay explores the origins of birthright citizenship and describes the centrality of citizenship rights in the advocacy of people, like Delany, who participated in the Free Black Civil Rights Movement and Antislavery Movement. Birthright citizenship is a promise of equality for all people who are born in the United States, regardless of their race or the national origin of their parents. It is in our Constitution today because of the advocacy of people who were brought involuntarily into our country and claimed their right to citizenship with their actions and their activism.

--Dan Ernst

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

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

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

New Directions in the Legal History of the Civil War Era

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

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

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

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

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

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

JACH (Winter 2025)

The Winter 2025 issue of Journal of American Constitutional History has been now published:

Evelyn Atkinson, “The Northern Man and His Corporations, the Southern Man and His Slaves”: Revisiting the Conspiracy Theory of the Fourteenth Amendment

Anna O. Law, The Civil War and Reconstruction Amendments’ Effects on Citizenship and Migration

Maeve Glass, In Search of a State

Book Review Symposium on David Pozen’s The Constitution of the War on Drugs (Oxford University Press, 2024)

    Aziz Rana, The “War on Drugs” and the Narrowing of Constitutional Imagination
    Louis Michael Seidman, Pozen and the Puzzle of Counterfactuals
    Kate Shaw, The Constitution of the War on Abortion

--Dan Ernst

Glickman on the Memory of Reconstruction in the Civil Rights Era

Lawrence B. Glickman, Cornell University, has published, open-access, “The Dark and Sad Days of Reconstruction”: The Politics of Memory in the Civil Rights Era in Modern American History:

This article examines how and why many prominent white supporters of the civil rights movement either ignored or condemned the model of the Reconstruction era. Presidents Kennedy and Johnson, for example, did not publicly mention Reconstruction as part of their efforts to promote civil rights, and in 1957, Hubert Humphrey, the pro–civil rights senator from Minnesota, spoke of “the dark and sad days of Reconstruction.” In contrast, as the article shows, most Black civil rights activists embraced the memory of Reconstruction. At the same time, segregationists frequently referred to and commemorated, albeit negatively, Reconstruction. Indeed, they popularized the idea that the modern civil rights movement was a “Second Reconstruction.” Through an examination of political statements, government documents, opinion columnists, historians, letters to the editor, and other sources, the article traces both the silence and condemnation of Reconstruction on the part of many civil rights supporters.

--Dan Ernst

JSCH 49:3

Journal of Supreme Court History 49:3 has been published:

"Judge" Eugene Brooks: Supreme Court Messenger, Proponent of Black Awareness, 1881-1926
Terence Walz

"The ct is disposed to consider the merits…Wow!": Anthony Lewis Takes Us Inside the Oral Arguments in NAACP v. Alabama ex rel. Flowers (1964)
Helen J. Knowles-Gardner

An End to Rebel "Punishment": The Test Oath Cases and the Constitutional Politics of Confederate Disqualification
M. Henry Ishitani

"Our Leading Feminist": Dorothy Kenyon and the Origins of Equal Protection for Women in Hoyt v. Florida
Isabel Miller

The Judicial Bookshelf
(reviews of Michael Nelson: Vaulting Ambition: FDR's Campaign to Pack the Court, and Greg Zipes, Justice and Faith, The Frank Murphy Story.
Donald Grier Stephenson, Jr.

--Dan Ernst

Kreis on Regulating Reproduction in Redeemer Georgia

Anthony Michael Kreis, Georgia State University College of Law, has posted Sex and Control in Redeemer Georgia, which is forthcoming in the Georgia State University Law Review:

This essay explores the interplay of history, law, and morality behind the first abortion law in Georgia. Examining the philosophical underpinnings of liberty and equality as articulated in Georgia's constitutional history through time, the essay highlights the moral contradictions inherent in the legal frameworks of Reconstruction Georgia. The origin of Georgia's 1876 abortion law contains multitudes-rooted in race-based contestations for political power, the sociological evolution of medical practice, and evolving attitudes on individual rights. At times, white elites used abortion to attack Yankee culture and stir up racist fears about moral contagion associated with Radical Republicans. To this end, when read against political time, the campaign to regulate motherhood and criminalize reproductive choice was not simply grounded in morality claims about protecting fetal life-a significant theme in the mid-nineteenth century campaign against abortion nationally-but also about enforcing other race and sex crimes and controlling the freedperson labor force in an era of political uncertainty and constitutional upheaval. Abortion surfaced as a political issue in Georgia at a time and in a manner that makes it inextricably linked to the politics of Reconstruction and Redemption.

--Dan Ernst

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