Kalman Comments on Tushnet's "Hughes Court"

[On Tuesday, April 4, Georgetown Law devoted a session of its faculty workshop to honoring the publication of The Hughes Court: From Progressivism to Pluralism, 1930-1941 (Cambridge University Press, 2022), a volume in the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, by Mark V. Tushnet, the William Nelson Cromwell Professor of Law Emeritus at the Harvard Law School.  The HLS Library hosted a virtual symposium on the book last year, Georgetown Law wanted to celebrate its appearance as well, because Professor Tushnet was a former, longtime member of its faculty.  My colleague Brad Snyder organized the event, at which Laura Kalman, Distinguished Research Professor of History, University of California, Santa Barbara, and I gave remarks.  With her permission, Professor Kalman's appear below.  Mine follow in the next post.  We ask you to keep the setting in mind as you read them.  DRE.]

Professor Kalman's Remarks:

Like some of you, I bet, I have my own very particular vision of Heaven. It includes a fabulous library where those who've died can continue reading what authors have written about them.  When the authors themselves arrive, they sit down with their subjects in the library café and consume great amounts of pizza from Frank Pepe's and beer as authors and subjects chew over what the authors wrote.  Given the food, the library's beauty, and the fact that the mantra in my heaven is that reasonable people can disagree, these discussions are usually very cheerful.  

Now when it happens the lunch between Oliver Wendell Holmes, Felix Frankfurter, and Paul Freund after they've read the book, with Mark, who I hope doesn't arrive in Heaven until he's 120, may start out a tad tense.  Holmes is probably thrilled to see Mark.  He's got to be relieved someone has FINALLY finished this volume of the Devise. Frankfurter--not so much.  Frankfurter was obviously the moving force on the Court behind the Devise, having launched it "into high gear” (ha ha) in 1955--while Earl Warren was distracted by Brown II and calls to run for President after Ike's heart attack. Mark is no Frankfurter fan, and he's called Frankfurter "sloppy" about procedural matters dear to the justice's heart. And Frankfurter has got to be bothered by the fact that Mark said in 1976 that the "time has come to blow the whistle on the Holmes Devise History of the Supreme Court"-presumably because the volumes have been taking too long to get out, since Frankfurter and Freund assigned them to the wrong people.  And then there's Freund, general editor of the Devise before he was succeeded by Stan Katz, then Maeva Marcus.  Freund was also supposed to have written the Hughes Court volume, but he didn’t deliver. Frankfurter and Freund can't relish having Mark at Harvard, much less as an author of the sainted Holmes Devise that the justice promoted to provide proof that Harvard was superior in all things.
 
But if our luncheon guests put all these issues aside, as you're supposed to do in my heaven, I bet Frankfurter and Freund are absolutely wowed by Mark's spectacular book. It is a masterpiece right from the early sentence, "There was no Constitutional Revolution of 1937, and this is a book about it." Mark explodes tired old dualities like progressive-conservative, formalist-realist, internalist-externalist and shows how the justices navigated their way between formalism and social reality to shape progressivism into pluralism. And in my favorite sentences on page 1162 (Holmes Devises double as doorstops), Mark identifies a "constitutional revolution" "IN" 1937 in the precise location of Jones & Laughlin's "dismissal of Carter Coal as "not controlling."  Then Mark rightly adds, "And yet, because legal consciousness is never fully consolidated, it is also a mistake to describe a constitutional revolution OF 1937." Absolutely brilliant! To conclude, I revere this book, and Frankfurter and Freund should also!

Schwartz and Mikhail on Exaggerating Madison

David S. Schwartz, University of Wisconsin Law School, and John Mikhail, Georgetown University Law Center, have posted The Other Madison Problem, which is forthcoming in volume 89 of the Fordham Law Review:

James Madison (NYPL)

The conventional view of legal scholars and historians is that James Madison was the “father” or “major architect” of the Constitution, whose unrivaled authority entitles his interpretations of the Constitution to special weight and consideration. This view greatly exaggerates Madison’s contribution to the framing of the Constitution and the quality of his insight into the main problem of federalism that the Framers tried to solve. Perhaps most significantly, it obstructs our view of alternative interpretations of the original Constitution with which Madison disagreed.

Examining Madison’s writings and speeches between the spring and fall of 1787, we argue, first, that Madison’s reputation as the father of Constitution is unwarranted. Madison’s supposedly unparalleled preparation for the Constitutional Convention and his purported authorship of the Virginia plan are unsupported by the historical record. Moreover, the ideas Madison expressed in his surprisingly limited pre-Convention writings were either widely shared or, where more peculiar to him, rejected by the Convention. Second, we argue that Madison’s recorded thought in this critical 1787 period fails to establish him as a particularly keen or authoritative interpreter of the Constitution. Focused myopically on the supposed imperative of blocking bad state laws, Madison failed to diagnose the central problem of federalism that was clear to many of his peers: the need to empower the national government to regulate the people directly. Whereas Madison clung to the idea of a national government controlling the states through a national legislative veto, the Convention settled on a decidedly non-Madisonian approach of bypassing the states by directly regulating the people and controlling bad state laws indirectly through the combination of federal supremacy and preemption. We conclude by suggesting that scholars pursue a fresh and more accurate assessment of Madison and his constitutional legacy, particularly with respect to slavery.

--Dan Ernst

Fordham Constitutional History Workshop: Spring 2020

Via co-organizers Saul Cornell and Jed Shugerman, we have the lineup for the Spring 2020

Fordham Constitutional History Workshop.

Jan. 29: Workshop: Jed Shugerman and Ethan Leib, “Faithful Execution, Fiduciary Constitutionalism, and Good Cause Removal” (paper related to Selia v. CFPB, to be argued March 3, 2020)

Feb. 5: Workshop: Julie Suk, CUNY Graduate Center, chapter “We working women, because we are mothers”: Legacies of the 19th Amendment” from forthcoming book, We the Women: The Forgotten Mothers of the Equal Rights Amendment.

Feb. 12: Workshop: Keith Whittington, Princeton (Politics Dept), Constitutional Crises, Real and Imagined (selections from forthcoming book)

Feb. 19: Selections from Gerald Leonard & Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s–1830s (2019)

Feb. 26: Workshop: Kunal Parker, U. of Miami Law, "Common Law Modernism: The Turn to Process in American Legal Thought, 1900 – 1970,” chapter from book manuscript on the idea of process in American legal, political, and economic thought (1900 - 1970)

March 4: Workshop: Jonathan Gienapp, Stanford History, selections from The Second Creation: Fixing the American Constitution in the Founding Era (2018)

March 11: Workshop: Felicia Kornbluh, University of Vermont, ‘Reproductive Rights and Justice Beyond Roe v. Wade: The View from 800 West End Ave’

March 25: Workshop: Nicholas Parrillo, Yale Law School, “Federal Tax Administration in the Early Republic.”

April 15: Workshop: Joanne Freeman, Yale History, selections from The Field of Blood: Violence in Congress and the Road to Civil War (2018)

All events are scheduled for Wednesdays, 2 to 3:50 PM, at Fordham Law School (Lincoln Center), Room 4-06. Contact the organizers for more information.

-- Karen Tani

Law of Nations and the Early American Constitution: An ICH Seminar

[We're moving this up, as the deadline for applications (December 30, 2019) will soon be upon us.;  DRE]

The Law of Nations and the Early American Constitution: How Citizens, Aliens, Slaves, and Indians Struggled to Build a “Civilized Nation.”  A New-York Historical Society/Institute for Constitutional History Seminar.

Constitution-making in the United States originated in an international war and for decades remained a cosmopolitan drama in which Americans claimed to be constituting a “civilized nation.” In four sessions, David Golove and Daniel Hulsebosch will lead an exploration of the ways that early Americans invoked the law of nations to make sense of, for example, what it meant to be a revolutionary republic in a world of nations; statebuilders in the evening of Enlightenment; African-Americans in an “empire of liberty”; and Native Americans caught between encroaching settlers and a fragmented but powerful government. In these contests, the law of nations functioned as a dynamic field of principles, practices, and keywords through which diverse actors filled in constitutional meanings while arguing about how to structure their relationship with each other and the wider world.

Workshop leaders.  David M. Golove (N.Y.U.) and Daniel J. Hulsebosch (N.Y.U.).  Professors Golove (Hiller Family Professor of Law) and Hulsebosch (Charles Seligson Professor of Law) have published separately and together about the international dimensions of early American constitutionalism, including in jointly-authored articles entitled “A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition” in the New York University Law Review (2010); “The Law of Nations and the Constitution: An Early Modern Perspective,” in the Georgetown Law Journal (2018), and “‘The Known Opinion of the Impartial World’: Foreign Relations and the Law of Nations,” forthcoming next year in The Cambridge Companion to The Federalist.

Logistics.  The seminar will be held at the New-York Historical Society, 170 Central Park West, New York City on the following dates, January 31, February 14, 28, and March 13.

Application process.  The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their C.V. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at MMarcus@nyhistory.org until December 30, 2019. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to Mmarcus@nyhistory.org.

Additional information. There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

About ICH:  The Institute for Constitutional History (ICH) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.

CFP: Constitutionalism & the American Presidency

The Missouri Valley History Conference has issued a CFP for its next annual meeting, on the theme “Constitutionalism & the American Presidency.”  The meeting will take place on March 12-14, 2020, at the University of Nebraska Omaha.  The extended (and final) deadline for submissions is December 13, 2019.

Please join us as we launch a new era in the history of the Missouri Valley History Conference!

In 2020, we are proud to bring the conference to our beautiful metropolitan campus.  We will utilize the facilities and resources of Mammel Hall on our Scott (South) Campus for conference events and sessions, while enjoying the abundant hotel, restaurant, and entertainment opportunities in the adjacent Aksarben Village district.  See   Official lodging and block rates for the MVHC will be provided by the Marriott Courtyard and Marriott Residence Inn, both located just a short walk from Mammel Hall.  We are confident that our new venues will provide a host of conveniences, savings, and benefits to conference participants.

The 2020 conference theme is “Constitutionalism & the American Presidency,” and we encourage the submission of papers and panels that are related to the broad fields of constitutional and presidential history.  As always, however, proposals for papers and panels on topics related to all time periods and historical subfields are welcome.  We are also pleased to announce the conference keynote talk: “Andrew Jackson in the Age of Trump,” presented by Dr. Daniel Feller, Professor of History and Director/Editor, Papers of Andrew Jackson, University of Tennessee, Knoxville, via the OAH Distinguished Lecturer Program.

All proposals—whether for individual papers or panels—should be digitally submitted to Dr. Mark Scherer, 2020 MVHC Coordinator at mvhc@unomaha.edu, on or before the deadline indicated above.  Proposals should adhere to the following guidelines:

For Individual papers, transmit the following items as ONE file attachment:
    Name, affiliation, and contact information, including email and phone number;
    Short CV;
    Brief abstract (no more than 300 words)

For panel submissions (papers or round table colloquia), transmit the following items as ONE file attachment:
    Name, affiliation, and contact information for each panel participant, designating one panelist as the organizer and chair;
    Short CV for each panel participant;
    Brief abstract (no more than 300 words) for each panelist’s paper;
    Brief “panel” abstract describing the panel’s scope (no more than 500 words)

The 2020 MVHC continues its partnership with Phi Alpha Theta (PAT) and the Society for Military History (SMH). For further information on registration and programming for the Phi Alpha Theta Nebraska Regional, please contact Dr. David Vail (vaildd@unk.edu) or see http://www.unk.edu/academics/history/.  Most MVHC sessions concerning military topics will be hosted by the SMH.  Proposals for papers and panels most directly related to military history should be submitted to George Eaton, Regional Director of the Society for Military History, at smhatmvhc@gmail.com.  Both MVHC and PAT award prizes for best undergraduate and graduate student papers.  SMH and the First Division Museum sponsor prizes for the best student papers in military history.   Eligibility for student awards requires conference registration and presentation.

Contact Info: Mark R. Scherer, Professor of History, Coordinator, 2020 MVHC, University of Nebraska-Omaha.  Contact Email: mvhc@unomaha.edu

--Dan Ernst

Nelson on the Common Law in Colonial America

In 2018, Oxford University Press published The Common Law in Colonial America, Vol.IV: Law and the Constitution on the Eve of Independence, 1735-1776 by William E. Nelson, New York University. This is the fourth and final volume in Nelson's series. From the publisher:

The eminent legal historian William E. Nelson's magisterial four-volume The Common Law in Colonial America traces how the many legal orders of Britain's thirteen North American colonies gradually evolved into one American system. Initially established on divergent political, economic, and religious grounds, the various colonial systems slowly converged until it became possible by the 1770s to imagine that all thirteen participated in a common American legal order, which diverged in its details but differed far more substantially from English common law. 

This fourth and final volume begins where volume three ended. It focuses on the laws of the thirteen colonies in the mid-eighteenth century and on constitutional events leading up to the American Revolution. Nelson first examines procedural and substantive law and looks at important shifts in the law to show how the mid-eighteenth- century colonial legal system in large part functioned effectively in the interests both of Great Britain and of its thirteen colonies. 

Nelson then turns to constitutional events leading to the Revolution. Here he shows how lawyers deployed ideological arguments not for their own sake, but in order to protect colonial institutional structures and the socio-economic interests of their clients. As lawyers deployed the arguments, they developed them into a constitutional theory that gave primacy to common-law constitutional rights and local self-government. In the process, the lawyers became leaders of the revolutionary movement and a dominant political force in the new United States.

Here's the Table of Contents:

Introduction
Chapter 1: Common Law Constitutionalism
Chapter 2: Localist Constitutionalism
Chapter 3: Uncontested Legal Practices
Chapter 4: The Well-Functioning Empire of the Mid-Eighteenth Century
Chapter 5: Government Failure in Two Colonies
Chapter 6: Weakening the Bonds of Empire
Chapter 7: Testing the Bonds of Empire
Chapter 8: Terminating the Ties of Empire
Chapter 9: Conclusion: Legal and Constitutional Legacies

Further information is available here. 

A Better Book: Trust Oneself, then Know Oneself

A week ago I had the pleasure of being on a panel focused on my recent book, Almost Citizens. Sophia Lee asked me a question that zeroed in on one of the book’s core claims: ambiguity often acts as a tool and pathway for legal and political actors seeking to alter constitutional meaning. Sophia’s question also cast into relief the topic of this post: the need both to trust one’s instincts and to interrogate them.

Sophia’s question ran along these lines:

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?

I was really happy to get the question.  Sophia had identified the tension between my faith in the autonomy of law and my comprehension that law had no existence apart from the broader world. At a general level, these were strands in legal history that another of last week’s panelists, Bob Gordon, had influentially spelled out 35 years ago. This post concerns how that tension mapped onto my own intuitions and research trajectory.

I was a 1L in law school and had yet to start my doctoral program in American Culture when I first encountered the Insular Cases (1901-1905).  It was thus very much as a lawyer (in the making) that I read these cases remaking the constitutional law of U.S. empire. I was struck by the absence of unequivocally binding doctrine to be found in them. Contrast many historians, who were more likely to notice the justices’ racial rhetoric, their dicta sympathetic to empire, and their failure to rein in colonialism.

My initial interpretation of events ran along formalist lines.  By trusting that I was analyzing the cases correctly, I could distinguish myself from a host of prior work. I argued that other scholars over-read the early Insular Cases. Downes v. Bidwell (1901) had no majority opinion. It thus could not have invented as binding doctrine the proposition that Puerto Rico was unincorporated, hence neither destined for statehood nor entitled to non-fundamental constitutional rights.  Gonzales v. Williams (1904) expressly declined to decide whether Puerto Ricans were U.S. citizens, so it did not hold that they were noncitizen nationals.  A justice firmly opposed to the doctrine of territorial nonincorporation joined the majority opinion in Dorr v. United States (1904), so it made little sense to identify that decision as establishing the doctrine as binding law.  Nor was Rasmussen v. United States (1905) a promising candidate. Its author, Justice Edward White, sought to influence how the Supreme Court reporter depicted the decision because he worried that the decision would not settle the question.

But as I moved from dissertation more firmly to book, I gained insight into my predilections.  I was overinvested in Puerto Rico’s first elected representative to Washington, the brilliant lawyer Federico Degetau y González.  As Sophia observed, Degetau shared my soft spot for legal formalism. He knew that citizenship, full constitutional rights, and eventual statehood were the constitutional consequences of annexation under the settled late-nineteenth-century constitutional understandings that I term the Reconstruction Constitution. He saw that new precedents had not overturned the prior case law.  And he expected law to tame politics if courts were provided the proper opportunity. He was wrong.

The more that I researched, the clearer it became that everyone around Degetau saw his legal quest as quixotic.  He left office politically isolated. He made little progress toward citizenship, full constitutional rights, or eventual statehood.  The Court was not opposed to empire and would not confront and overawe politics. The justices were caught between competing impulses: adhere to settled constitutional understandings and avoid dooming the U.S. imperial experiment.

By gaining perspective on Degetau (and myself), I was able to reinterpret the Court’s fractured, evasive decisions.  The justices were not silent on empire; they had not simply left prior constitutional doctrine in place.  The Court was productively ambiguous (for more on legal ambiguity as the handmaiden of empire, see Katrina Quisumbing King’s excellent dissertation-now-book-project). To reconcile the Constitution and empire, it cooperated with nonjudicial actors in a slow, creative process characterized by judicial vagueness.  This became a key claim of the book. Constitutional revolutions are not always marked by landmark cases.  Sometimes they are hidden behind fractured decisions, underdefined terms, narrow holdings, suggestive dicta, and the legal innovations and on-the-ground decisions of bureaucrats, lawmakers, and presidents.

That leads to my answer to Sophia’s questions.  Law never dominated politics. But during the late nineteenth century, the Reconstruction Constitution did slow down imperialistic projects.  As a result, I think there’s value to pursuing a politics dedicated to lodging key commitments in constitutional law.  On that front, we could do worse than to resurrect aspects of the Reconstruction Constitution.  As to Degetau, he was both savvy and naïve.  He was a genius at ginning up citizenship disputes all across the federal government.  But he was overoptimistic in his assessment of the promise of a purely legal strategy.  In making that mistake, he resembles me. I frequently find myself disappointed that courts do not more fully vindicate their professed precedential commitments.  Had I been an elite advocate for Puerto Rico in the early twentieth century, I might have backed Degetau. The value of taking years to write the book decades after the events it depicted were over is that I was able to convey both the attractions and the perils of my and Degetau’s mistaken premise.

--Sam Erman

Barnett on Lochner

Randy E. Barnett, Georgetown University Law Center, has posted After All These Years, Lochner Was Not Crazy — It Was Good, which appears in the Georgetown Journal of Law & Public Policy 16 (2018): 437-43

For this year’s Rosenkranz Debate, we have been asked to debate the question: Lochner v. New York: Still Crazy After All These Years? It is my job to defend the “negative” position. My burden is not to establish that Lochner was correctly decided, but merely that it was not “crazy.” I intend to meet that burden and exceed it. I intend to show how Lochner v. New York was not at all crazy; in fact, it was a reasonable and good decision.

H/t: Legal Theory Blog

Orren, Compton, and friends on the US Constitution

Karen Orren (UCLA) and John W. Compton (Chapman University) have co-edited The Cambridge Companion to the United States Companion with Cambridge University Press. From the publisher: 

This Companion provides a broad, historically informed introduction to the study of the US constitutional system. In place of the usual laundry lists of cases, doctrines, and theories, it presents a picture of the constitutional system in action, with separate sections devoted to constitutional principles, organizational structures, and the various legal and extra-legal 'actions' through which litigators and average citizens have attempted to bring about constitutional change. Finally, the volume covers a number of subjects that are rarely discussed in works aimed at a general audience, but which are critical to ensuring that constitutional rights are honored in the day-to-day lives of citizens. These include standing and causes of action, suits against officeholders, and the inner workings of the Foreign Intelligence Surveillance Court (FISC). This Companion places present-day constitutional controversies in historical context, and offers insights from a range of disciplines, including history, political science, and law.

Contents after the jump.

On Finding a Dissertation Topic … or at Least, My Experience Finding a Topic

All graduate students do some hand-wringing and soul-searching when it comes time to nail down a dissertation topic. (And, if not, they should.) It’s a project you live with for quite a while. So it had better be something that you find deeply engrossing and that is complex enough that you’ll keep discovering new findings. For me, I knew I wanted to work in the area of government-business relations, or political economy. I had written my Master’s thesis with Chuck McCurdy in legal history and I loved the historiography surrounding the “liberty of contract” era and the constitutional revolution of 1937, but I wasn’t sure how to systematically identify a workable research topic within my broader interests. This post recounts some advice I received on finding a research question and how that advice helped guide me toward a dissertation topic.

At the time, I wasn’t exactly looking for a dissertation topic per se. I was a second-year graduate student in search of a research question for a legal history seminar. My master’s thesis had explored the rise of the liberty of contract doctrine and the decline of equity jurisprudence in 1880s Pennsylvania. It focused on the legislation and litigation surrounding Godcharles v. Wigeman (PA, 1886). What I had most enjoyed about that project was studying the intersection – or, more appropriately, the collision – of doctrinal changes in contract interpretation and enforcement, on the one hand, and social protest and labor organization, on the other. I wanted to somehow replicate that broader inquiry, balancing the internalist and externalists pressures on the legal change. (Of course, it was that historiography that brought me to graduate school at the University of Virginia.)

First, I went down some relatively unproductive rabbit holes. At one point, I thought I’d like to write about the decline of equity jurisprudence, probably after reading Roscoe Pound’s 1905 essay, "The Decadence of Equity." I went to the library and checked out Justice Joseph Story’s tome on equity jurisprudence and began studying his categories and historical analysis. This was not fruitful. In fact, it was discouraging. For me, I needed more historiographical grounding; I needed to start with a question that would limit the scope of the inquiry. I wasn’t in a position to simply let the documents tell their story. In other words, my propensity to go down the rabbit hole needed some fencing in.

Then, I sought advice and got a great suggestion from Brian Balogh: Go back to one of your favorite books from the past year or so. Reread it. Pay attention to what you found interesting then and what you still find interesting now. Reread your marginalia. (Luckily, my books have no shortage of scribbles, question marks, and asterisks.) You’ll find a research question there. Then read what that author cited, discover a new literature, find your own primary source base, and start an investigation to tell your own story.

Well, that was simple enough! Following Balogh’s advice, I went back to Meg Jacobs’s Pocketbook Politics, one of my favorite books from the previous year. Jacobs’s book recounts the rise of mass consumption-oriented political activism. This story of state-building from the bottom up explains how consumer organizations shaped new ideas of stability and security, such as the living wage, which penetrated American civic identity and shaped modern liberalism.

As I read the book I wondered what happened to the so-called fair trade movement that Jacobs covers early in her book. Those independent proprietors were caught up in the same winds of social and economic change. They blamed the modern corporation for rising inequality and, at times, they argued that large scale producers leveraged their monopoly power to force prices and wages to artificially low levels. Louis Brandeis, the famed people’s lawyer, took up their cause and helped create the American Fair Trade League. He too feared economic concentration because it might stifle innovation and empower a small coterie of businesspeople to exercise undue influence of political processes. In short, these guys believed in market capitalism – property rights, contract enforcement, etc. – but they wanted to see the rules governing American capitalism change such that independent proprietors and trade associations might use sales contracts and industry rules, respectively, to manage the distribution chain, ridding it of unfair trade practices, such as sales below cost, predatory pricing, or secret rebates. Yet, what looked like cartel-like industry self-regulation depended on state enforcement and ultimately, state oversight. What was their contribution to modern liberalism?

So, I wondered, should this movement be dismissed as pie in the sky idealism, condemned as dying industries’ desperate rent-seeking, or approached as something more benign, maybe even some viable alternative model of American capitalism?  The historical literature was all over the place on that question. In fact, the Court seemed to be, too. Experimentation in antitrust law and policy during the first half of the twentieth century reflects the flexibility of vision that American capitalism once had. I was hooked, I needed to know more.

**

Sage advice from around the web includes practical insights and personal reflections that I would be remiss to neglect here. Apart from choosing a topic that you find deeply interesting or puzzling, Cynthia Verba, Director of Fellowships at Harvard’s GSAS, urges young academics to make sure that the dissertation is a project that you can (and will) complete in a reasonable amount of time with reasonable costs. She advises: “In this regard, it is most helpful to get advice from experienced scholars on how to limit the scope of a project without limiting the significance of the questions addressed.” (Read the full interview here.) Professor Jane Caplan published a lovely and insightful essay on selecting a dissertation topic in the AHA Perspectives. Among the many brilliant insights in her essay, she emphasizes that “graduate research projects are contingent on financial support,” which elevates the craft of writing a research proposal to one of the most important activities of young scholars. Ultimately, she concludes, as I think many historians would, “the field chose me rather than the other way round.” 

Collins and Woolhandler on Judical Federalism under Marshall and Taney

Michael G. Collins and Ann Woolhandler, University of Virginia School of Law have posted Judicial Federalism under Marshall and Taney, which is to appear in 2017 Supreme Court Review:

The Supreme Court during the Chief Justiceship of John Marshall is associated with endorsement of broad regulatory powers in Congress and broad federal question jurisdiction in the federal courts under Article III. By contrast, the successor Court under Chief Justice Roger Taney remains tied to its determination in Dred Scott that Congress lacked powers to enact the Missouri Compromise prohibiting slavery in certain of the territories, and to Taney’s opinion that descendants of African slaves could never be citizens who could invoke the federal courts’ diversity of citizenship jurisdiction. This article addresses the ways in which the Taney Court nevertheless outdid the Marshall Court in terms of a nationalist approach to judicial federalism.

Roger Taney (NYPL)

The Marshall Court faced a political environment hostile to the Federalist-dominated federal courts, and in reaction repeatedly expressed respect for congressional power over its jurisdiction, and tied its expansions of federal judicial power closely to expansive views of congressional power. The Taney Court, by contrast, did not face similar political-branch threats. Its jurisdictional opinions were less deferential to Congress than Marshall Court opinions. And while the Marshall Court tied its expansions of judicial power to broad views of congressional power, the Taney Court’s expansions of judicial power operated to limit any concomitant expansion of congressional power.

The Taney Court accomplished this by expanding diversity of citizenship jurisdiction beyond what the Marshall Court had done and by explicitly adopting the use of a uniform judge-made general common law in diversity cases. It also expanded admiralty jurisdiction by an interpretation of Article III’s admiralty provision that was contrary to Marshall Court precedent, and rejected a proffered Commerce Clause justification that would have entailed broader congressional powers. And when it channeled certain matters away from the state courts to the federal courts based on exclusive federal powers, the Taney Court relied on implied federal powers whose enforcement could be limited by notions of necessity, as distinguished from the Marshall Court’s looser version of “necessary and proper.”

Grewal & Purdy, "The Original Theory of Originalism"

David Singh Grewal (Yale Law School) and Jedediah S. Purdy (Duke University School of Law) have posted "The Original Theory of Originalism." The article appears in Volume 127 of the Yale Law Journal. Here's the abstract:

The U.S. Constitution embodies a conception of democratic sovereignty that has been substantially forgotten and obscured in today’s commentary. Recovering this original idea of constitution-making shows that today’s originalism is, ironically, unfaithful to its origins in an idea of self-rule that prized both the initial ratification of fundamental law and the political community’s ongoing power to reaffirm or change it. This does not mean, however, that living constitutionalism better fits the original conception of democratic self-rule. Rather, because the Constitution itself makes amendment practically impossible, it all but shuts down the very form of democratic sovereignty that authorizes it. No interpretive strategy succeeds in overcoming the dilemma of a constitution that at once embodies and prohibits democratic sovereignty.

The full article is available here, at SSRN.

What Kind of Civil Cases Black Southerners Litigated Against Whites in Southern Courts, 1865-1899

As black southerners litigated civil cases against whites in southern appellate courts from the end of the Civil War to the mid-20th century, they found it far easier to litigate certain kinds of civil cases against whites than others. The types of civil cases that they could litigate in appellate courts also shifted over time.

Courtesy: Library of Congress

A baseline for what kinds of cases state supreme courts around the country were hearing can be

established from an extensive study of almost 6,000 cases heard by 16 state supreme courts around the U.S. (including several in the South) completed during the 1970s. An analysis of the kinds of cases found to be coming before these courts between 1870 and 1970 appeared in the January 1977 Stanford Law Review. In contrast, the research for my new book Litigating Across the Color Line found the proportions of different kinds of appellate civil cases litigated by black southerners significantly diverged from the proportions of such cases documented in U.S. state supreme courts as a whole.

The most frequent types of appellate civil suits litigated by black southerners against whites between 1865 and 1899 were suits over wills/bequests, cases over transactions/contracts, property dispute cases, and cases over personal injury. In particular, during this period, African Americans litigated appellate civil cases against whites over wills and estates far more often than such cases appeared in general appellate litigation. While the 1977 study found cases over inheritance/estates made up 6% of overall cases between 1870 and 1900, inheritance/estates cases made up approximately 36% of black litigants' appellate civil cases against white litigants in the 8 courts examined between 1865 and 1899. In such cases, black litigants frequently litigated suits against white heirs to obtain a bequest left in a former master or former employer's will. For instance, a number of former slaves who had been left money in former masters' wills to facilitate their migration to Liberia brought civil suits after the Civil War to claim the bequests without having to move to Liberia.  I argue that such cases made up a large proportion of black southerners' litigation because they drew on the power of a white person's will and appealed to respected legal precedents around bequests.

In addition, cases over contracts and transactions occurred about twice as often in African Americans' appellate civil cases during Reconstruction than they occurred in general appellate cases during this time. In these cases over contracts and transactions, black litigants presented themselves as able to function competently and independently in the postwar economic realm and at times boldly challenged economic injustice. In one such contract suit in 1873, a black sharecropper named Moses Summerlin did not tend his crops for several weeks after his wife died. He soon returned to the fields but when he asked William Smith, the white owner of the land, to aid him in hauling the cotton and corn, Smith refused and accused the sharecropper of producing only half of the crop that he could have. In response, Moses Summerlin brought a civil case against Smith that appealed to the law of contract to gain his portion of the crop. In his testimony, Summerlin emphasized his economic abilities, stating that he had employed “five or six hands” to work for him. At great personal risk, Summerlin also told the court that when he had asked the white landowner to give him his portion of the crop, Smith ordered him out of the yard and told him “if he came back he would kill him.”  In the end, the county court ordered the white landowner to pay $113.18 and legal costs to Summerlin, and on appeal, the Georgia state supreme court upheld the decision. While this was significantly less than the amount the sharecropper had claimed, Summerlin had shifted -- in some small way -- the terms upon which he and Smith operated.* Through his litigation and testimony, he had also publicly expressed his own ideas about how the post-war southern economy should function.  At the same time, by hearing such suits and at times ruling in favor of the black litigant, white jury members and judges could show the supposed justice of southern courts and seek to elide widespread unfairness in the labor system and property transactions.

I'll be back tomorrow morning to discuss the kinds of appellate civil cases black litigants most frequently litigated against whites in southern courts between 1900 and 1950.

*Smith v. Summerlin, 48 Ga. 425 (1873).

The American Historian magazine's November issue on Law and the Courts

Cover Design: Ashlee W. Smith; Photo: Emmanuel Huybrechts        

The Organization of American Historians' magazine, The American Historian, has focused its November 2017 issue (out online today) on Law and the Courts. The issue includes resources for teaching legal history, including a discussion of several scholars' favorite court cases to use in the classroom and an article by Robert Cohen and Laura Dull that encourages including Ruth Bader Ginsburg when teaching about the women’s rights revolution.

Additionally, the issue contains a roundtable in which three scholars discuss "Historians in Court," including the ethical difficulties posed by historians’ participation in the courtroom and how effective historians’ testimony is in the courtroom. As part of the roundtable, Tomiko Brown-Nagin discusses her experience filing amicus briefs with the U.S. Supreme Court in cases dealing with discrimination and affirmative action in education, Linda Gordon talks about amicus briefs she has participated in in abortion cases, and Kenneth Mack explains his experiences supervising a professional historian’s expert report as a young lawyer and later signing amicus briefs from scholars and historians to the US Supreme Court. 

My own article in this issue, “Rethinking the Role of the Courts in the Lives of Black Southerners,” discusses how black southerners’ civil cases reframe the traditional narrative of African American political participation.  In the traditional narrative, black southerners move from institutional engagement during Reconstruction and its aftermath to a fight largely outside of government institutions in the US South, only to take up the fight for the vote again in the decades immediately before the Civil Rights movement. I argue that looking at black southerners’ engagement in southern courts shifts this story, showing continuing engagement with one southern government institution – the courts – from Reconstruction to the Civil Rights movement. In addition, the magazine contains an article by Susan J. Pearson on "Anticruelty Organizations and Statebuilding in Gilded-Age America” and a consideration of the history of felon disfranchisement laws and prison gerrymanders by Christina Rivers. 

The full issue can be accessed by OAH members on the OAH website here, but non-members can also look out for selected articles from the issue that may be released to the public on the magazine's website.

How Black Litigants Shaped Their Civil Cases Against Whites

Today I’m guest blogging about how black southerners negotiated the post-Civil War legal landscape.  In particular, I want to consider how they worked to shape their civil cases against whites. This research is laid out in greater detail in my new book, Litigating Across the Color Line: Civil Cases Between Black and White Southerners from the End of Slavery to Civil Rights.

As African Americans litigated civil cases against whites in the U.S. South from the end of the Civil War to the mid-20^th century, they saw that the outcomes of their cases would often have enormous economic effects on their families. At the same time, black litigants generally seem to have recognized the difficulties of operating within the southern legal system – an institution in which those making decisions generally had very different interests than their own. To give their cases the best possible chance, then, black litigants in almost one thousand civil cases that reached eight southern appellate courts between 1865 and 1950 often employed a range of strategies.  While their lawyers undoubtedly played a key part in many of these strategies, black litigants played an important role in shaping and executing them as well.  

First, in almost every civil case between black and white southerners that I found in eight southern state supreme courts, black litigants had hired white lawyers to represent them. The white lawyers involved were often prominent members of the community and seem to have generally taken on a few black litigants’ cases alongside their larger practice of cases involving white litigants.  Often, white lawyers seem to have taken on black clients because their cases promised to yield a large financial reward. At times, however, they seem to have also been influenced by personal connections, paternalism, ideas of professionalism, or very occasionally, to have genuinely sympathized with the causes of their black clients. Using a white lawyer helped make black litigants’ cases seem less threatening and more acceptable to white judges and juries. At the same time, it limited the kinds of cases they could bring and the types of arguments that their suits could make.

A number of black litigants also emphasized connections with prominent whites in their communities.  While this occurred particularly often in cases during the three and a half decades after the Civil War, such strategies were also occasionally employed in the first half of the 20^th century.  At times, black litigants mentioned their ties with local whites in their testimony, including at times their connections to former masters. In other cases, black litigants may have played a part in identifying the white witnesses who frequently testified in their favor in such cases.  

Black litigants also shaped their testimony based on their understanding of the relevant law. Case files suggest that they gained some knowledge of the law from coaching and conversations with their lawyers. They also learned from participating in legal actions and daily experiences in a law-saturated society.  Black litigants then often worked with their lawyers to shape their testimony to meet the demands of the law for their particular case. In suits over bequests, for example, black litigants’ testimony sometimes helped to establish the testator’s intention to leave the bequest to them, an element that one 19^th century Tennessee judge called “the great rule in the construction of wills.”[i] In fraud cases, on the other hand, black litigants’ testimony often worked to establish proof of physical injury and loss of income, two important elements to proving such a claim.

Finally, some black litigants used their knowledge of white southern racial attitudes to present themselves in ways that would elicit favorable responses from largely white juries and judges. In the decades after the Civil War, they occasionally presented themselves as having been loyal to their former masters, even after the end of the war.  At other times they presented themselves as hardworking, “respectable,” or unthreatening. The ways in which they presented themselves also shifted over time. During the two decades after widespread disfranchisement occurred at the end of the 19^th century, black litigants often presented themselves in their testimony as more ignorant, more vulnerable, and more trusting of whites than they actually were. 

These strategies played a part in some African Americans’ continuing ability to litigate and win civil cases against whites in the Jim Crow South, even after black men largely lost the right to vote. At the same time, these strategies sometimes limited their cases in important ways.  Moreover, even as they carefully negotiated the southern legal landscape, black litigants found that in contrast to the broad range of cases litigated between whites, they had the most success bringing certain kinds of cases against whites.  The kinds of cases they could litigate shifted over time, as well, as the constraints they operated under changed.  I’ll be back talking about this in my next blog post in a few days.

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[i] Lynch v. Burts, 48 Tenn. 600 (1870).