Monday, December 10, 2007
Achtenberg on the Unknown History of 42 U.S.C. Sec. 1983 and the Meaning of "Under Color of" Law
David Achtenberg, University of Missouri at Kansas City - School of Law, has posted an article, A 'Milder Measure of Villainy': The Unknown History of 42 U.S.C. Sec. 1983 and the Meaning of 'Under Color of' Law. It appeared in the Utah Law Review. Here's the abstract: Chapter 42 U.S. C. § 1983, was originally enacted as section 1 of the Ku Klux Act. Not surprisingly, the history of the Ku Klux Act has played an important role in the interpretation of 42 U.S. C. § 1983. Unfortunately, the generally accepted history of the Ku Klux Act is incomplete, distorted, and, in some respects, demonstrably wrong. The conventional history of the Ku Klux Act is flawed in three respects. First, it omits the first several chapters of the story. The conventional history begins with Grant's March 23, 1871, message to the Forty-second Congress and completely overlooks the political and legislative maneuvering that preceded Grant's message. Second, the conventional history overstates Grant's role as the instigator in the enactment of the Ku Klux Act when he was, at most, a hesitant supporter of a struggle waged by the congressional Radicals - and refused to take any public position on the issue until persuaded to do so by a persistent lobbying effort. Third, the conventional history fails to disclose that there was a rough draft of the section of the Ku Klux Act that became 42 U.S. C. § 1983. In its least accurate version, the conventional history states that the Ku Klux Act was drafted by the Morton-Butler Committee. In its more accurate version, the conventional history treats the Ku Klux Act as having sprung entirely from the mind of Samuel Shellabarger. However, this version fails to mention that Shellabarger substantially copied section 1 from a bill written by Senator Frelinghuysen and never recognizes that Shellabarger's revisions of that section shed important light on the meaning of 42 U.S. C. § 1983. This article completes and corrects the historical record. By doing so, it should dispel the remarkably persistent myth that the Forty-second Congress never intended the provision to cover constitutional wrongs unless those wrongs were actually authorized by state law - a myth that Justices Scalia and Thomas have attempted to use as a license to restrict the scope of 42 U.S. C. § 1983 in ways that they admit would otherwise be unjustifiable.
Tanenhaus, Between Dependency and Liberty: The Conundrum of Children's Rights in the Gilded Age
David S. Tanenhaus, William S. Boyd School of Law, Univ. of Nevada Las Vegas, has posted the abstract for a new article, Between Dependency and Liberty: The Conundrum of Children's Rights in the Gilded Age. It is forthcoming in the Law and History Review. LHR is an open-access journal, so the article will be available on the LHR website when published. Here's the abstract: Although legal scholars often assume that the history of children's rights in the United States did not begin until the mid twentieth century, this essay argues that a sophisticated conception of children's rights existed a century earlier, and analyzes how lawmakers articulated it through their attempts to define the rights of dependent children. How to handle their cases raised fundamental questions about whether children were autonomous beings or the property of either their parents and/or the state. And, if the latter, what were the limits of parental authority and/or the power of the state acting as a parent? By investigating how the Illinois Supreme Court confronted the conundrum of children's rights in the Gilded Age, the essay reconstructs how lawmakers established a viable system for guaranteeing at-risk children due process protections as well as the positive rights of social citizenship. Significantly, this creative moment occurred at a transitional point in American legal history, when lawmakers began developing liberal constitutionalism. Given the subsequent difficulties that liberal constitutionalism has had in protecting children's due process rights, providing for their basic needs, and giving them a voice in the legal process, the essay contends that it is worth engaging this earlier history.
Sunday, December 9, 2007
Policy History Conference -- Deadline extended for submissions
This is a very substantive conference, and smaller than the meetings of large organizations like the American Historical Association. It is a great opportunity for graduate students -- more of a chance of your paper being accepted, and opportunities to actually spend time with senior scholars because there is a smaller crowd. I'm part of a panel proposal. They've lined up the following speakers on plenary panels: Byron Shafer, University of Wisconsin-Madison; Nelson Lichtenstein, University of California, Santa Barbara; Robin Einhorn, University of California, Berkeley; Richard Bensel, Cornell University; Harry Scheiber, University of California, Berkeley; William J. Novak, University of Chicago; James Mohr, University of Oregon; Jennifer Klein, Yale University; Rosemary Stevens, University of Pennsylvania; Paul Starr, Princeton University. Recommended! Announcement below:
POLICY HISTORY CONFERENCE 
DEADLINE FOR SUBMISSIONS EXTENDED TO DECEMBER 29, 2007
DEADLINE FOR SUBMISSIONS EXTENDED TO DECEMBER 29, 2007
The Journal of Policy History is holding a Conference on Policy History at the Sheraton Clayton Plaza in St. Louis from May 29 to June 1, 2008. Program chairs are Edward Berkowitz and Robert C. Lieberman. The conference coordinator is Matthew C. Sherman.
All topics concerning the history, development and implementation of public policy, American political development, and comparative historical analysis will be considered. Complete sessions are encouraged, but individual paper proposals are welcome. The editors of the /Journal of Policy History/ encourage conference presenters to submit their papers for possible publication.
The deadline for proposals is December 29, 2007.
Proposals should include one (1) copy of the following materials to be considered:
1. Panel/Paper Description and Contact Information Page
(template is available on our website.)
(template is available on our website.)
2. A one (1) page summary of each paper
3. A one (1) page C.V. of each panelist
Please send the materials to Policy History Conference, Journal of Policy History, Saint Louis University, 3800 Lindell Blvd., P. O. Box 56907, St. Louis, MO 63156-0907. Incomplete proposals and e-mailed submissions will not be considered.
For questions concerning conference content or program information, please contact Edward Berkowitz at ber "at" gwu.edu or Robert C. Lieberman at rcl15 "at" columbia.edu. Please direct general e-mail inquiries to Matthew C. Sherman, the conference coordinator, at policyhistoryconference "at" gmail.com.
To make reservations for the conference at the special conference rate of $109.00, please call the Sheraton Clayton Plaza Hotel at 314-863-0400 and mention the Policy History Conference.
3. A one (1) page C.V. of each panelist
Please send the materials to Policy History Conference, Journal of Policy History, Saint Louis University, 3800 Lindell Blvd., P. O. Box 56907, St. Louis, MO 63156-0907. Incomplete proposals and e-mailed submissions will not be considered.
For questions concerning conference content or program information, please contact Edward Berkowitz at ber "at" gwu.edu or Robert C. Lieberman at rcl15 "at" columbia.edu. Please direct general e-mail inquiries to Matthew C. Sherman, the conference coordinator, at policyhistoryconference "at" gmail.com.
To make reservations for the conference at the special conference rate of $109.00, please call the Sheraton Clayton Plaza Hotel at 314-863-0400 and mention the Policy History Conference.
Saturday, December 8, 2007
Your government at work: CIA "declassification" review results in more materials kept secret
Steven Aftergood has an essay in Secrecy News, published by the Federation of American Scientists on CIA bungling of declassification of secret documents. The essay has been republished on HNN. Aftergood writes, in part:
When the Central Intelligence Agency released several declassified histories of its clandestine services program this week, it seemed like a solid indication of progress towards opening up the historical record of U.S. intelligence (Secrecy News, 12/05/07).
But upon closer inspection of the newly released documents, the opposite appears to be closer to the truth. It turns out that CIA has engaged in pointless multiple reviews of the same document, and has even attempted to classify and to withhold information that had previously been declassified and disclosed.
Today, the Federation of American Scientists asked the Information Security Oversight Office to investigate the matter.
The 1961 "Record of Paramilitary Action Against the Castro Government of Cuba" that was posted on the CIA web site this week was first processed for declassification in 1997 in response to a request from Peter Kornbluh, the Cuba expert at the National Security Archive, and the lightly redacted document was posted on the Archive web site in 1998.
In 2007, the same document was again subjected to declassification review. It was re-scanned by CIA reviewers and this time the redactions were made by whiting out the text instead of blacking it out as had been done ten years ago. But appearances aside, a comparison of the two documents indicates that no new information was released since 1997.
In other words, despite the CIA's expenditure of scarce declassification resources to process the document twice, no value was added by doing so.
Even more problematic is the Agency's handling of the declassified history of "The Berlin Tunnel Operation, 1952-1956", because the CIA attempted to withhold portions of that report as classified even though they had previously been released.
The Berlin Tunnel history has been reviewed several times for declassification. The latest version that was released by the CIA this week was "approved for release" in July 2007. Another version of the same document was previously "approved for release" in February 2007 (Secrecy News, 04/05/07).
Astonishingly, much of the text that was released in February is marked as classified in the July version!
Continue reading here.
When the Central Intelligence Agency released several declassified histories of its clandestine services program this week, it seemed like a solid indication of progress towards opening up the historical record of U.S. intelligence (Secrecy News, 12/05/07).
But upon closer inspection of the newly released documents, the opposite appears to be closer to the truth. It turns out that CIA has engaged in pointless multiple reviews of the same document, and has even attempted to classify and to withhold information that had previously been declassified and disclosed.
Today, the Federation of American Scientists asked the Information Security Oversight Office to investigate the matter.
The 1961 "Record of Paramilitary Action Against the Castro Government of Cuba" that was posted on the CIA web site this week was first processed for declassification in 1997 in response to a request from Peter Kornbluh, the Cuba expert at the National Security Archive, and the lightly redacted document was posted on the Archive web site in 1998.
In 2007, the same document was again subjected to declassification review. It was re-scanned by CIA reviewers and this time the redactions were made by whiting out the text instead of blacking it out as had been done ten years ago. But appearances aside, a comparison of the two documents indicates that no new information was released since 1997.
In other words, despite the CIA's expenditure of scarce declassification resources to process the document twice, no value was added by doing so.
Even more problematic is the Agency's handling of the declassified history of "The Berlin Tunnel Operation, 1952-1956", because the CIA attempted to withhold portions of that report as classified even though they had previously been released.
The Berlin Tunnel history has been reviewed several times for declassification. The latest version that was released by the CIA this week was "approved for release" in July 2007. Another version of the same document was previously "approved for release" in February 2007 (Secrecy News, 04/05/07).
Astonishingly, much of the text that was released in February is marked as classified in the July version!
Continue reading here.
Schorr: Who Said Blackstone Was a Blackstonian?
David Schorr, Tel Aviv University, has posted a new paper, Who Said Blackstone Was a Blackstonian? Here's the abstract: Based on Blackstone's famous characterization of property as that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe, Blackstonian property has become shorthand for a conception of property as individual, exclusive and absolute dominion. Yet the anointment of Blackstone as the symbol of property absolutism is odd; his characterization of property as sole and despotic dominion is largely at odds with his own exposition of the property law of England. Property in the Commentaries was full of complex arrangements of rights, creating communities with respect to specific assets and recognizing the rights of the community in what was nominally private property. Why has exclusive dominion as a model for property, then, come to be associated with Blackstone, of all people? This paper begins by surveying the Commentaries, revealing the Blackstone placed property's complexity, and the typical lack of an owner with sole and despotic dominion over an external thing, front and center. Several possible explanations are offered to explain why Blackstone would first characterize property as sole and despotic dominion and give several hundred pages of illustrations undercutting this definition. It shows how Blackstone was long associated in the property context with doctrines portraying property as a bundle of rights, and how only in recent times, particularly in the United States, has Blackstone come to be associated with sole and despotic dominion. Finally, it offers an explanation for the new popularity of Blackstone as the avatar of absolute dominion.
Friday, December 7, 2007
Foner on Musharraf on Lincoln
Eric Foner, DeWitt Clinton Professor of History at Columbia, just published Reading Lincoln in Pakistan in The Nation and on HNN. He writes:
Every generation and every political movement, it seems, reinvents Abraham Lincoln in its own image. But rarely has he been invoked so cynically as on November 4, when President-General Pervez Musharraf quoted extensively from Lincoln to justify the suspension of the Pakistani Constitution and the imposition of martial law. Musharraf declared that during the Civil War, Lincoln "broke laws, he violated the Constitution, he usurped arbitrary power, he trampled individual liberties." He quoted from an 1864 letter to Albert Hodges, in which Lincoln declared that "measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the Constitu
tion, through the preservation of the nation." Musharraf failed to note that in this letter, Lincoln was not defending the abrogation of democracy or the suppression of civil liberties but his decision to emancipate the slaves.
But even on the grounds of civil liberties and executive authority, the General's effort to wrap himself in Lincoln's mantle is ludicrous. Lincoln did take actions that interfered with Americans' freedoms and bent the Constitution. At the outset of the Civil War, without Congressional authorization, Lincoln raised troops, appropriated funds, suspended habeas corpus in Maryland and ignored a ruling by Chief Justice Roger Taney ordering the release of a man arrested for aiding the rebellion. Later, Lincoln extended the suspension of habeas corpus to include the entire North. Under his authority as Commander in Chief, the military arrested thousands, most of them accused of actively aiding the Confederacy, but some of nothing more than criticizing Administration policies. The most notorious was Clement Vallandigham, a Congressman from Ohio, convicted by a military tribunal of disloyalty for a speech opposing the draft. Lincoln ordered him deported to the Confederacy.
These policies are today viewed as serious blemishes on the history of American freedom. But they do not add up to a general assault on the Constitution and all were ratified by a democratically elected Congress. Here is what Lincoln did not do and Musharraf did. He did not suspend the Constitution, remove the Chief Justice, impose martial law upon the entire country, incarcerate dozens of lawyers, arrest leaders of the opposition party and human rights advocates or ban political demonstrations. Perhaps most important, he did not disrupt the operation of political democracy. Throughout the Civil War, elections were held on schedule. In 1862 the Democratic opposition won sweeping gains in Congressional contests, but Congress continued to meet. During the summer of 1864, Lincoln feared he might be defeated for re-election, but the election went ahead as scheduled. Lincoln insisted that the United States must demonstrate that even in the midst of a civil war, a democracy could submit its policies to the judgment of the people.
Every generation and every political movement, it seems, reinvents Abraham Lincoln in its own image. But rarely has he been invoked so cynically as on November 4, when President-General Pervez Musharraf quoted extensively from Lincoln to justify the suspension of the Pakistani Constitution and the imposition of martial law. Musharraf declared that during the Civil War, Lincoln "broke laws, he violated the Constitution, he usurped arbitrary power, he trampled individual liberties." He quoted from an 1864 letter to Albert Hodges, in which Lincoln declared that "measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the Constitu
tion, through the preservation of the nation." Musharraf failed to note that in this letter, Lincoln was not defending the abrogation of democracy or the suppression of civil liberties but his decision to emancipate the slaves.But even on the grounds of civil liberties and executive authority, the General's effort to wrap himself in Lincoln's mantle is ludicrous. Lincoln did take actions that interfered with Americans' freedoms and bent the Constitution. At the outset of the Civil War, without Congressional authorization, Lincoln raised troops, appropriated funds, suspended habeas corpus in Maryland and ignored a ruling by Chief Justice Roger Taney ordering the release of a man arrested for aiding the rebellion. Later, Lincoln extended the suspension of habeas corpus to include the entire North. Under his authority as Commander in Chief, the military arrested thousands, most of them accused of actively aiding the Confederacy, but some of nothing more than criticizing Administration policies. The most notorious was Clement Vallandigham, a Congressman from Ohio, convicted by a military tribunal of disloyalty for a speech opposing the draft. Lincoln ordered him deported to the Confederacy.
These policies are today viewed as serious blemishes on the history of American freedom. But they do not add up to a general assault on the Constitution and all were ratified by a democratically elected Congress. Here is what Lincoln did not do and Musharraf did. He did not suspend the Constitution, remove the Chief Justice, impose martial law upon the entire country, incarcerate dozens of lawyers, arrest leaders of the opposition party and human rights advocates or ban political demonstrations. Perhaps most important, he did not disrupt the operation of political democracy. Throughout the Civil War, elections were held on schedule. In 1862 the Democratic opposition won sweeping gains in Congressional contests, but Congress continued to meet. During the summer of 1864, Lincoln feared he might be defeated for re-election, but the election went ahead as scheduled. Lincoln insisted that the United States must demonstrate that even in the midst of a civil war, a democracy could submit its policies to the judgment of the people.
The rest is here.
Reviewed: Blight, A Slave No More: Two Men Who Escaped to Freedom, Including Their Own Narratives of Emancipation
A SLAVE NO MORE: Two Men Who Escaped to Freedom, Including Their Own Narratives of Emancipation by David W. Blight (Harcourt) is reviewed in the New York Times by William Grimes. Hat tip. Grimes writes:
The rest is here. Blight's powerful interview on NPR is here. Looking for something to listen to on a long road trip? The book is already out on CD.
The chaos of Civil War meant only one thing to America’s four million slaveIn one example, the testimony of Wallace Turnages: hope. With armies on the march, and the old social order crumbling, men like John Washington and Wallace Turnage seized the moment and made a break for freedom, issuing their own emancipation proclamations before the fact. They were “quiet heroes of a war within the war to destroy slavery,” as David W. Blight puts it in “A Slave No More.”
Both Washington and Turnage, near contemporaries, wrote vivid accounts of their lives as slaves and the bold bids for freedom that took them across Confederate lines and into the waiting arms of Union soldiers. Recently discovered, both texts have been reproduced by Mr. Blight as written, with misspellings and grammatical errors intact.
Mr. Blight, a professor of American history at Yale and the author of “Race and Reunion: The Civil War in American Memory,” has also provided an extended preface that provides historical context, fills in biographical gaps and extends the life stories of both men past the Civil War, when their manuscripts break off abruptly, to their deaths in the early 20th century. Two remarkable lives, previously lost, emerge with startling clarity, largely through the words of the principal actors themselves.
sheds light on the support network among slaves, nearly all more than willing to feed or conceal a runaway, or provide information on how to evade capture on the road ahead. “They gloried in my spunk,” Turnage writes of a group of slaves who hid him at one plantation.
His final flight, from Mobile to the Union ships anchored offshore, caps his thrilling tale. After nonchalantly walking straight through a Confederate camp and wading barefoot through snake-infested swamps, he reaches an impasse, with Confederate pickets behind him and a broad expanse of water ahead of him.
“It was death to go back and it was death to stay there and freedom was before me,” he writes. He pressed forward and, by luck, found a rickety little boat on the shore.
The rest is here. Blight's powerful interview on NPR is here. Looking for something to listen to on a long road trip? The book is already out on CD.
Call for Papers: ASLH Preyer Scholars Competition
ASLH Call for Papers: Kathryn T. Preyer Scholars Competition
The Kathryn T. Preyer Memorial Committee of the American Society for Legal History invites submission for the Kathryn T. Preyer Scholars Competition. The c
ompetition is named in honor of the late Kitty Preyer, a distinguished historian of early America and beloved member of the Society. The two winners of the competition will be named Kathryn T. Preyer Scholars. Each will present the paper that he or she submitted to the competition at the Society’s annual meeting in Ottawa in November, 2008. Kathryn T. Preyer Scholars will receive a $250 cash award and reimbursement of expenses of up to$750 for travel, hotels and meals.
ompetition is named in honor of the late Kitty Preyer, a distinguished historian of early America and beloved member of the Society. The two winners of the competition will be named Kathryn T. Preyer Scholars. Each will present the paper that he or she submitted to the competition at the Society’s annual meeting in Ottawa in November, 2008. Kathryn T. Preyer Scholars will receive a $250 cash award and reimbursement of expenses of up to$750 for travel, hotels and meals.Submissions are welcome on any legal, institutional and/or constitutional aspect of American history and the Atlantic World. Graduate students, law students, and other early-career scholars who have presented no more than two papers at a national conference are eligible to apply. Papers submitted to the ASLH Program Committee,whether or not for an existing panel, and papers not submitted are all equally eligible for the competition.
Submissions should include a curriculum vitae of the author, contact information, and a complete draft of the paper to be presented. The draft may be longer than could be presented in the time available at the meeting (twenty minutes) and should contain supporting documentation,but one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The deadline for submission this year is February 1, 2008.
Please send submissions to Laura Kalman, kalman "at" history.ucsb.edu, and she will forward them to the other members of the Preyer Committee.
Submissions should include a curriculum vitae of the author, contact information, and a complete draft of the paper to be presented. The draft may be longer than could be presented in the time available at the meeting (twenty minutes) and should contain supporting documentation,but one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The deadline for submission this year is February 1, 2008.
Please send submissions to Laura Kalman, kalman "at" history.ucsb.edu, and she will forward them to the other members of the Preyer Committee.
Thursday, December 6, 2007
Helps reviews Fyson, Magistrates, Police, and People: Everyday Criminal Justice in Quebec and Lower Canada, 1764-1837
Donald Fyson, Magistrates, Police and People: Everyday Criminal Justice in Quebec and Lower Canada, 1764-1837 (University of Toronto Press, 2006) is reviewed for H-Canada by Lisa Helps, Department of History, University of Toronto. Fryson’s book was awarded the 2006 Canadian Law and Society Association Book Prize (English) and the 2006 Clio Award, Quebec Region, from the Canadian Historical Association, and it received honorable mention for the 2006 Sir John A. Macdonald Prize of the Canadian His
torical Association and the 2006 James Willard Hurst Prize of the Law and Society Association. Helps writes:
torical Association and the 2006 James Willard Hurst Prize of the Law and Society Association. Helps writes:Donald Fyson's Magistrates, Police, and People: Everyday Criminal Justice in Quebec and Lower Canada, 1764-1837 certainly deserves both the awards and accolades it has recently received. While the book purports to be an in-depth study of the relationship between law and society between the Conquest of Quebec and the Rebellions of Upper and Lower Canada, its historiographical reach and import stretch back beyond the Conquest and forward past the Rebellions. Indeed, Fyson's major contribution to the historiography of Quebec and Lower Canada is his rejection of the conventional periodization; he argues against the rupture-stasis thesis which posits that after the Conquest there were drastic changes in both the content and application of everyday criminal justice. Accepted accounts maintain that the Canadien majority was dominated and oppressed by the imposed and--until the Rebellions--static legal system of the colonizer. The picture, Fyson asserts, was much more complicated than the traditional version. Using what he calls an approach of "empathetic reconstruction" he delves into these complexities with alacrity and grace (p. 12).
Drawing on quantitative and qualitative sources (rather than performing a discourse analysis) and taking a collective rather than individual approach, the book opens with an examination of structural factors. In the first few chapters Fyson examines the extent to which British justice was imposed on a conquered French colony, dissects the process by which men were made into justices, scrutinizes the aggregate character of the magistracy, and outlines early policing practices.
Challenging both accepted historiography and equally, it seems, contemporary opinion, Fyson demonstrates that the criminal justice system in his period of study was not made up of incompetent, primarily British magistrates unfamiliar with the law and incapable of enforcing it. Rather, he charts the percentage of active Francophone magistrates in the District of Montreal as well as the proportion of Francophone justices hearing complaints, committing to jail, and holding seats on the Quarter Sessions bench--all key aspects of a justice's work. His evidence shows overwhelmingly that, aside from the late 1790s and the late 1820s, Francophone justices played an important role in the delivery of everyday justice....Fyson makes a similar, and similarly compelling, argument in the chapter "The Police before the Police." Here he first struggles with the question of definition, asserting the importance--as he does throughout the book--of continuity and change. He defines bailiffs, militia officers, and citizen constables not by their organizational structure or salaried status but by their state-sanctioned ability to intervene "between the criminal justice system of the state and members of society at large" (p. 140). With a quick wave of his quantitative wand he allays historiographical and contemporary assertions about ineffective policing in a pre-modern state. "There was quite evidently some policing going on," he maintains, "at least from the perspective of the 10,000-odd people confined in the Montreal goal on criminal charges between 1811 and 1836, the 8,500 in the Quebec gaol," thousands more in houses of correction as well as those who were arrested and brought before justices (pp. 137-138).
As a way of testing his hypothesis about the effectiveness of everyday criminal justice, Fyson examines the system from the perspective of those who experienced it. Here the issue of power is his primary concern....The strength of Fyson's analysis of power is that he does not theorize power but rather demonstrates the intricacies of its workings and its circulations.
Contesting the three classic views of the criminal justice system in Quebec and Lower Canada (that it was consensual, conflictual, or marginal), Fyson asserts that the system could serve as a source of social power for a wide variety of groups in the colony, from battered wives to local elites. Those who otherwise lacked power sometimes used the system as a source of protection; those in more powerful positions could use the criminal justice system to serve their social interests. However, these seemingly straightforward assertions lead him to no simplistic conclusion. Indeed, working against the historiographical grain, he illustrates that even though there were structural inequalities embedded in the criminal justice system, the system itself was not a means of class, race, and gender domination, but rather was wielded as a source of power by those same people against whom it was structurally biased. His analysis of women's complaints in this regard is the strongest. Finally, he argues that although people accessed everyday criminal justice as a source of power when it served them to do so, this did not necessarily reflect a belief in the legitimacy of the law.
A final important contribution of Magistrates, Police, and People is its engagement with the topic of state formation. Fyson maintains that the march toward the modern, liberal democratic state was more of a clumsy two-step and that this process began earlier than most historians have acknowledged. In Montreal and Quebec he points to the increasing bureaucracy involved in the dispensation of everyday criminal justice well before the Rebellions. Through the rise of bureaucracy in the early decades of the nineteenth century, he posits, the state was increasingly able to "impose itself on the people" (p. 312). However, he asserts that there were actually two criminal justice systems: one in town and one in country. Whereas bureaucracy was an urban phenomenon, in rural Quebec and Lower Canada the spread of access to criminal justice itself was the major transformation that took place in his period of study. And it is here, I argue, that Fyson makes an important intervention into the relationship between knowledge dispersal/gathering and state formation. A key component of state making from the perspective of histories of modern state formation is the centralization of power and knowledge. Bruce Curtis's work on the census is the most explicit in this regard. In considering the formation of the local pre-Rebellion state, Fyson blurs this picture considerably and identifies an interesting reversal. By examining the local face of the state, he reveals that the dispersion of power and knowledge was an integral process of state formation. It seems to me that following this line of thought could lead historians of the state, in particular those who approach it from below, along a number of interesting paths.
Drawing on quantitative and qualitative sources (rather than performing a discourse analysis) and taking a collective rather than individual approach, the book opens with an examination of structural factors. In the first few chapters Fyson examines the extent to which British justice was imposed on a conquered French colony, dissects the process by which men were made into justices, scrutinizes the aggregate character of the magistracy, and outlines early policing practices.
Challenging both accepted historiography and equally, it seems, contemporary opinion, Fyson demonstrates that the criminal justice system in his period of study was not made up of incompetent, primarily British magistrates unfamiliar with the law and incapable of enforcing it. Rather, he charts the percentage of active Francophone magistrates in the District of Montreal as well as the proportion of Francophone justices hearing complaints, committing to jail, and holding seats on the Quarter Sessions bench--all key aspects of a justice's work. His evidence shows overwhelmingly that, aside from the late 1790s and the late 1820s, Francophone justices played an important role in the delivery of everyday justice....Fyson makes a similar, and similarly compelling, argument in the chapter "The Police before the Police." Here he first struggles with the question of definition, asserting the importance--as he does throughout the book--of continuity and change. He defines bailiffs, militia officers, and citizen constables not by their organizational structure or salaried status but by their state-sanctioned ability to intervene "between the criminal justice system of the state and members of society at large" (p. 140). With a quick wave of his quantitative wand he allays historiographical and contemporary assertions about ineffective policing in a pre-modern state. "There was quite evidently some policing going on," he maintains, "at least from the perspective of the 10,000-odd people confined in the Montreal goal on criminal charges between 1811 and 1836, the 8,500 in the Quebec gaol," thousands more in houses of correction as well as those who were arrested and brought before justices (pp. 137-138).
As a way of testing his hypothesis about the effectiveness of everyday criminal justice, Fyson examines the system from the perspective of those who experienced it. Here the issue of power is his primary concern....The strength of Fyson's analysis of power is that he does not theorize power but rather demonstrates the intricacies of its workings and its circulations.
Contesting the three classic views of the criminal justice system in Quebec and Lower Canada (that it was consensual, conflictual, or marginal), Fyson asserts that the system could serve as a source of social power for a wide variety of groups in the colony, from battered wives to local elites. Those who otherwise lacked power sometimes used the system as a source of protection; those in more powerful positions could use the criminal justice system to serve their social interests. However, these seemingly straightforward assertions lead him to no simplistic conclusion. Indeed, working against the historiographical grain, he illustrates that even though there were structural inequalities embedded in the criminal justice system, the system itself was not a means of class, race, and gender domination, but rather was wielded as a source of power by those same people against whom it was structurally biased. His analysis of women's complaints in this regard is the strongest. Finally, he argues that although people accessed everyday criminal justice as a source of power when it served them to do so, this did not necessarily reflect a belief in the legitimacy of the law.
A final important contribution of Magistrates, Police, and People is its engagement with the topic of state formation. Fyson maintains that the march toward the modern, liberal democratic state was more of a clumsy two-step and that this process began earlier than most historians have acknowledged. In Montreal and Quebec he points to the increasing bureaucracy involved in the dispensation of everyday criminal justice well before the Rebellions. Through the rise of bureaucracy in the early decades of the nineteenth century, he posits, the state was increasingly able to "impose itself on the people" (p. 312). However, he asserts that there were actually two criminal justice systems: one in town and one in country. Whereas bureaucracy was an urban phenomenon, in rural Quebec and Lower Canada the spread of access to criminal justice itself was the major transformation that took place in his period of study. And it is here, I argue, that Fyson makes an important intervention into the relationship between knowledge dispersal/gathering and state formation. A key component of state making from the perspective of histories of modern state formation is the centralization of power and knowledge. Bruce Curtis's work on the census is the most explicit in this regard. In considering the formation of the local pre-Rebellion state, Fyson blurs this picture considerably and identifies an interesting reversal. By examining the local face of the state, he reveals that the dispersion of power and knowledge was an integral process of state formation. It seems to me that following this line of thought could lead historians of the state, in particular those who approach it from below, along a number of interesting paths.
The full review is here.
Katz on History Salaries
Stanley Katz, Princeton, has become a blogger! He has a new post on the Chronicle of Higher Education's new blog, Brainstorm. Katz takes up a new report on compensation that
The rest is here.
shows history salaries lagging significantly behind the average for all disciplines (except the health sciences, which are not included in these statistics). The discrepancy is greatest in the lowest academic ranks (that is, entry-level salaries), where history salaries were 14.2 percent below the average — whereas full professors were 7.5 percent below the average.
What this means, of course, is that historians are now being paid at levels comparable to those of the other humanities disciplines —and for compensation purposes, history is clearly considered a humanities, not a social-science, field.
The rest is here.
Wednesday, December 5, 2007
Following today's Supreme Court arguments in the new Guantanamo cases
With the Supreme Court hearing arguments at 10 a.m. (eastern) this morning in new cases about the rights of Guantanamo detainees, Boumediene v. Bush and Al Odah v. United States, here are some places to follow the news. At stake in the cases is whether Guantanamo detainees can challenge their detention in U.S. civilian courts, and more broadly the scope of executive power over Guantanamo detainees. SCOTUS Blog has details about the litigation and will post the audio of the arguments as soon as it becomes available. Due to the importance of the cases, the Court will release the audio shortly after the arguments conclude. Start with the links here, and check the main page for updates.
Other helpful posts & sites are:
Marty Lederman at Balkinization. Keep an eye on the main Balkinization page after the arguments are over.
On-line debate sponsored by the Federalist Society.
The ACLU position outlined at the American Constitution Society Blog.
Michael Dorf on suicides at Gitmo.
Flanagan reviews Farber, Lincoln's Constitution
Daniel Farber, Lincoln's Constitution (University of Chicago Press, 2003) is reviewed for H-CivWar by Brian Flanagan, Hauenstein Center for Presidential Studies, Grand Valley State University. Flanagan writes:
Examples abound in history, of leaders who have taken on dictatorial powers at the expense of constitutional order--Lucius Cornelius Sulla and Julius Caesar in classical Rome; Mao Zedong, Joseph Stalin, Hideki Tojo, Adolf Hitler, and Benito Mussolini in modern Europe and Asia. It would come as a shock to the sensibilities of most Americans who revere their sixteenth president that Abraham Lincoln is often placed in the company of such leaders. As we approach the bicentennial of Lincoln's birth, it is important to remember that throughout the Civil War he took actions that were viewed by many of his contemporaries--and are still viewed by many scholars--as beyond the limits of ordinary presidential authority, as perhaps dictatorial.
In 1861, after the South's attack on Fort Sumter, newly inaugurated President Lincoln opted for several counter-offensives that fell squarely within Article I of the United States Constitution, describing the national legislature's authority--not the president's. He blockaded Southern ports (effectively declaring a state of war); suspended habeas corpus between Washington D.C. and Philadelphia, and eventually across the North; expanded the regular army and navy; and ordered the U.S. Treasury to advance two million dollars to a private firm in New York for discretionary use on war supplies. Later he instituted military trials across North and South to dispense justice and ignored a Supreme Court directive challenging his authority to suspend the writ. Even the Emancipation Proclamation, Lincoln himself admitted, would have been beyond his authority in peacetime.
But 1861-65 was a time of rebellion--of Civil War--in the United States. How does this extraordinary circumstance change the legal implications of Lincoln's actions?
Enter Daniel Farber.
Farber's book, Lincoln's Constitution, could justifiably be re-titled "Lincoln's Constitutionality"(at the expense of the author's double entendre): it is more correctly characterized as an assessment of the legality of Lincoln's presidency than as an analysis of his interpretation (or reinterpretation) of the U.S. Constitution. In fact, this is one notable limit to Farber's legal history of the executive administration of the Civil War. He does not consider, as Garry Wills has, the significance of the Gettysburg Address in changing the Constitution by cleansing it of "that legal compromise" over the issue of slavery and by appealing instead to its "spirit," its moral root in the Declaration of Independence. Except in passing, he does not consider, as David Herbert Donald has, Lincoln's Whig understanding of the Constitution that actually weakened the executive branch in relation to Congress and the cabinet, even if in war decisions it tended toward John Quincy Adams's expansive view that, "by the laws of war an invaded country has all its laws and municipal institutions swept by the board, and martial law takes the place of them.... Whether the war be civil, servile, or foreign ... the military authority takes for the time the place of all municipal institutions, slavery among the rest."
Farber's analysis of Lincoln's abidance by constitutional law, congressional statute, presidential precedent, and Supreme Court ruling is exhaustive. With the possible exception of J. G. Randall, no scholar to date has made as thorough a study of Lincoln's war measures in light of American law. More limited analyses have stopped at the (accurate) assertion that Lincoln himself never claimed his sweeping use of power was ordinarily legal. In essence, he went stovepipe hat in hand to a special session of Congress to ask ratification of his otherwise extralegal usurpation of congressional authority:
"These measures, whether strictly legal or not, were ventured upon, under what appeared to be a popular demand, and a public necessity; trusting, then as now, that Congress would readily ratify them. It is believed that nothing has been done beyond the constitutional competency of Congress."
More limited analyses have pointed to Congress's August 1861 ratification of Lincoln's actions, the Supreme Court's March 1863 Prize Cases decision upholding the legality of his early war measures, and Congress's 1863 Habeas Corpus Indemnity Act, which retroactively authorized all arrests and seizures made under authority of the president.
More limited analyses have gone back further to emphasize the 1787 Constitutional Convention's decision to replace Congress's authority to "make" war with its authority to "declare" war, leaving it to the president to repel sudden attacks. Much more limited analyses have claimed broad, inherent, executive war powers--out of reach of the legislative and judicial branches--and other exclusively presidential prerogatives deduced from Article II clauses of the United States Constitution. These analyses have used the uncharacteristic claim of a preeminent constructionist, Thomas Jefferson, that jeopardizing the nation's "very high interests ... by scrupulous adherence to written law, would be to lose the law itself ... thus absurdly sacrificing the end to the means." Or they have used Lincoln's refrain defending suspension of the writ, "are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" Together, these arguments can be used to make a strong case for the constitutionality of Lincoln's war measures, and all are assessed by Farber--most of them in one chapter.
But it is important--especially as debates persist today over the balance between national security and individual rights, presidential and congressional authority, national and state sovereignty--to remember that Lincoln's presidency was extraordinary in our history. It is important, as we read presidential historian Michael Beschloss trumpeting the supreme value of presidential courage, to look closer at Lincoln's actions and understand where at crucial moments he probably overstepped his authority--even if he has been vindicated by history. It is important, as Lincoln scholar Vernon Orville Burton pins the roots of an "imperial presidency" in the sixteenth president's "cavalier" approach to civil liberties, to recognize where the president was squarely within his legal bounds and where he showed great restraint.
For this, we can return to Daniel Farber's legal history of Lincoln's war decisions. Farber, the Sho Sato Professor of Law at the University of California, Berkeley, and McKnight Presidential Professor of Law at the University of Minnesota, has given us a disciplined and fair look at the sixteenth president's most controversial decisions. Farber considers a wide range of arguments both defending and condemning Lincoln: from his pre-presidential conclusion that secession was indeed illegal--that the federal government had authority to coerce state governments into recognizing the supreme law of the land--to his exercise of powers ordinarily reserved by Congress, to his administration's infringements on individual liberties in North and South. The author is decisive where possible but allows uncertainty to remain where it must--particularly on constitutional questions of "original intent" that the framers themselves debated until their deaths. Farber's conclusions, overall, are favorable to Lincoln's legacy. With the exception of some prominent freedom of speech infringements and cases of unjustified abridgement of individual rights in the North, most of what Lincoln did was strictly constitutional, falling within explicit presidential or congressional authority. It is a vital distinction, of course, that Lincoln's use of congressional powers--though probably necessary and in line with the "classic liberal view of emergency power"--were "approved and in all respects legalized and made valid" by Congress (p. 194). "Nowhere was there any thought," writes Farber, "that necessity alone gave the president an exemption from the legal consequences of violating statutory or constitutional requirements. Lincoln does not seem to have claimed such legal authority" (p. 195). Instead, Lincoln was retroactively granted executive and legislative prerogative to deal with the consequences of rebellion in the South. Such being the case, Abraham Lincoln's accusers turn out to be right. In the classical Roman sense, he may accurately be called a dictator--a praetor maximus--vested temporarily with extraordinary power to deal with crisis. It is lucky, Farber reminds us, that at the crucial moment a man of "unshakable determination, combined with a shrewd sense of reality" was available to lead (p. 199).
In 1861, after the South's attack on Fort Sumter, newly inaugurated President Lincoln opted for several counter-offensives that fell squarely within Article I of the United States Constitution, describing the national legislature's authority--not the president's. He blockaded Southern ports (effectively declaring a state of war); suspended habeas corpus between Washington D.C. and Philadelphia, and eventually across the North; expanded the regular army and navy; and ordered the U.S. Treasury to advance two million dollars to a private firm in New York for discretionary use on war supplies. Later he instituted military trials across North and South to dispense justice and ignored a Supreme Court directive challenging his authority to suspend the writ. Even the Emancipation Proclamation, Lincoln himself admitted, would have been beyond his authority in peacetime.
But 1861-65 was a time of rebellion--of Civil War--in the United States. How does this extraordinary circumstance change the legal implications of Lincoln's actions?
Enter Daniel Farber.
Farber's book, Lincoln's Constitution, could justifiably be re-titled "Lincoln's Constitutionality"(at the expense of the author's double entendre): it is more correctly characterized as an assessment of the legality of Lincoln's presidency than as an analysis of his interpretation (or reinterpretation) of the U.S. Constitution. In fact, this is one notable limit to Farber's legal history of the executive administration of the Civil War. He does not consider, as Garry Wills has, the significance of the Gettysburg Address in changing the Constitution by cleansing it of "that legal compromise" over the issue of slavery and by appealing instead to its "spirit," its moral root in the Declaration of Independence. Except in passing, he does not consider, as David Herbert Donald has, Lincoln's Whig understanding of the Constitution that actually weakened the executive branch in relation to Congress and the cabinet, even if in war decisions it tended toward John Quincy Adams's expansive view that, "by the laws of war an invaded country has all its laws and municipal institutions swept by the board, and martial law takes the place of them.... Whether the war be civil, servile, or foreign ... the military authority takes for the time the place of all municipal institutions, slavery among the rest."
Farber's analysis of Lincoln's abidance by constitutional law, congressional statute, presidential precedent, and Supreme Court ruling is exhaustive. With the possible exception of J. G. Randall, no scholar to date has made as thorough a study of Lincoln's war measures in light of American law. More limited analyses have stopped at the (accurate) assertion that Lincoln himself never claimed his sweeping use of power was ordinarily legal. In essence, he went stovepipe hat in hand to a special session of Congress to ask ratification of his otherwise extralegal usurpation of congressional authority:
"These measures, whether strictly legal or not, were ventured upon, under what appeared to be a popular demand, and a public necessity; trusting, then as now, that Congress would readily ratify them. It is believed that nothing has been done beyond the constitutional competency of Congress."
More limited analyses have pointed to Congress's August 1861 ratification of Lincoln's actions, the Supreme Court's March 1863 Prize Cases decision upholding the legality of his early war measures, and Congress's 1863 Habeas Corpus Indemnity Act, which retroactively authorized all arrests and seizures made under authority of the president.
More limited analyses have gone back further to emphasize the 1787 Constitutional Convention's decision to replace Congress's authority to "make" war with its authority to "declare" war, leaving it to the president to repel sudden attacks. Much more limited analyses have claimed broad, inherent, executive war powers--out of reach of the legislative and judicial branches--and other exclusively presidential prerogatives deduced from Article II clauses of the United States Constitution. These analyses have used the uncharacteristic claim of a preeminent constructionist, Thomas Jefferson, that jeopardizing the nation's "very high interests ... by scrupulous adherence to written law, would be to lose the law itself ... thus absurdly sacrificing the end to the means." Or they have used Lincoln's refrain defending suspension of the writ, "are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" Together, these arguments can be used to make a strong case for the constitutionality of Lincoln's war measures, and all are assessed by Farber--most of them in one chapter.
But it is important--especially as debates persist today over the balance between national security and individual rights, presidential and congressional authority, national and state sovereignty--to remember that Lincoln's presidency was extraordinary in our history. It is important, as we read presidential historian Michael Beschloss trumpeting the supreme value of presidential courage, to look closer at Lincoln's actions and understand where at crucial moments he probably overstepped his authority--even if he has been vindicated by history. It is important, as Lincoln scholar Vernon Orville Burton pins the roots of an "imperial presidency" in the sixteenth president's "cavalier" approach to civil liberties, to recognize where the president was squarely within his legal bounds and where he showed great restraint.
For this, we can return to Daniel Farber's legal history of Lincoln's war decisions. Farber, the Sho Sato Professor of Law at the University of California, Berkeley, and McKnight Presidential Professor of Law at the University of Minnesota, has given us a disciplined and fair look at the sixteenth president's most controversial decisions. Farber considers a wide range of arguments both defending and condemning Lincoln: from his pre-presidential conclusion that secession was indeed illegal--that the federal government had authority to coerce state governments into recognizing the supreme law of the land--to his exercise of powers ordinarily reserved by Congress, to his administration's infringements on individual liberties in North and South. The author is decisive where possible but allows uncertainty to remain where it must--particularly on constitutional questions of "original intent" that the framers themselves debated until their deaths. Farber's conclusions, overall, are favorable to Lincoln's legacy. With the exception of some prominent freedom of speech infringements and cases of unjustified abridgement of individual rights in the North, most of what Lincoln did was strictly constitutional, falling within explicit presidential or congressional authority. It is a vital distinction, of course, that Lincoln's use of congressional powers--though probably necessary and in line with the "classic liberal view of emergency power"--were "approved and in all respects legalized and made valid" by Congress (p. 194). "Nowhere was there any thought," writes Farber, "that necessity alone gave the president an exemption from the legal consequences of violating statutory or constitutional requirements. Lincoln does not seem to have claimed such legal authority" (p. 195). Instead, Lincoln was retroactively granted executive and legislative prerogative to deal with the consequences of rebellion in the South. Such being the case, Abraham Lincoln's accusers turn out to be right. In the classical Roman sense, he may accurately be called a dictator--a praetor maximus--vested temporarily with extraordinary power to deal with crisis. It is lucky, Farber reminds us, that at the crucial moment a man of "unshakable determination, combined with a shrewd sense of reality" was available to lead (p. 199).
The full review, with cites to sources, is here. Unfortunately, in this helpful review, Flanagan does not use the notes to fill in the sources of "more limited analysis" he invokes in the review.
Tuesday, December 4, 2007
Goebel reviews Fairweather, A Common Hunger: Land Rights in Canada and South Africa
Joan G. Fairweather, A Common Hunger: Land Rights in Canada and South Africa (University of Calgary Press, 2006) is reviewed by Allison Goebel, Women's Studies and Environmental Studies, Queen's University, Canada on H-SAfrica. Goebel writes:
This interesting and well-documented book attempts the difficult task of comparing the histories of European occupation and subsequent dispossession, oppression, and struggles for liberation of indigenous/Aboriginal peoples in Canada and South Africa ("indigenous" is more common in South Africa, while "Aboriginal" is the word of choice in Canada). Beyond the commonly understood similarities of the Indian Reserves in Canada and the Bantustans of Apartheid South Africa (although they are, in fact, quite different in origin and function), this is not an obvious comparison to make. How can you compare a country with a vast majority of indigenous peoples who won independence from former European colonialists with a country where the indigenous population is a tiny minority with no agenda to defeat the government, or a developing nation with a member of the G8?
However, by choosing to focus on land rights and their relationship to dignity, sovereignty, and human rights, the project proves useful for what it reveals about each case. It was also a good choice to restrict the book to only two cases: this allows for enough detail so as not to lose the unique historical narratives of each country, while allowing the drawing out of an interesting selection of thematic points of comparison.
For me, as a Canadian who does research in southern Africa, the most important overall point was the reminder that Canadian history is a colonial history, not separate from the South African story or other histories of empire. It is a story of dispossession and racism, of cruel oppression and ongoing marginalization. For Joan Fairweather is dead right when she claims, in her conclusion, that Aboriginal peoples are not part of the dominant narrative of Canadian history, which is written as a story of the battle between the English, the French, and the emerging United States. We Canadians have been well schooled to write Aboriginal peoples out of our national identity, and to try hard to ignore the struggles going on right now for Aboriginal land rights and recognition.
The book is organized in three parts denoting the three major themes pursued: dispossession, reclaiming the land, and dealing with legacies. Within each theme similarities and differences between the two cases are exposed. The first section outlines the main historical processes on the two continents, which began with trading, but led to setting up permanent settlements and the claiming of land and resources. In both cases, European colonists assumed the right to impose governance structures where none (that they recognized) seemed to exist. However, how this was done differed. Two key differences in this early period are the issue of slaves and other labor relations, and the role of treaties in the land alienation processes....
Part 2 of the book traces efforts by indigenous peoples in both countries to reclaim the land....The final part of the book, dealing with legacies, highlights efforts to confront and promote healing in relation to the more traumatic aspects of colonial occupation and rule....
Ultimately, although South Africa has won its independence, the majority of indigenous people there still live with the historical dispossession and impoverishment wrought by colonial conquest, as do Aboriginal peoples in Canada. This unifies the book, and reminds readers of important truths of colonial legacies both North and South.
The rest of this detailed and interesting review is here.
However, by choosing to focus on land rights and their relationship to dignity, sovereignty, and human rights, the project proves useful for what it reveals about each case. It was also a good choice to restrict the book to only two cases: this allows for enough detail so as not to lose the unique historical narratives of each country, while allowing the drawing out of an interesting selection of thematic points of comparison.
For me, as a Canadian who does research in southern Africa, the most important overall point was the reminder that Canadian history is a colonial history, not separate from the South African story or other histories of empire. It is a story of dispossession and racism, of cruel oppression and ongoing marginalization. For Joan Fairweather is dead right when she claims, in her conclusion, that Aboriginal peoples are not part of the dominant narrative of Canadian history, which is written as a story of the battle between the English, the French, and the emerging United States. We Canadians have been well schooled to write Aboriginal peoples out of our national identity, and to try hard to ignore the struggles going on right now for Aboriginal land rights and recognition.
The book is organized in three parts denoting the three major themes pursued: dispossession, reclaiming the land, and dealing with legacies. Within each theme similarities and differences between the two cases are exposed. The first section outlines the main historical processes on the two continents, which began with trading, but led to setting up permanent settlements and the claiming of land and resources. In both cases, European colonists assumed the right to impose governance structures where none (that they recognized) seemed to exist. However, how this was done differed. Two key differences in this early period are the issue of slaves and other labor relations, and the role of treaties in the land alienation processes....
Part 2 of the book traces efforts by indigenous peoples in both countries to reclaim the land....The final part of the book, dealing with legacies, highlights efforts to confront and promote healing in relation to the more traumatic aspects of colonial occupation and rule....
Ultimately, although South Africa has won its independence, the majority of indigenous people there still live with the historical dispossession and impoverishment wrought by colonial conquest, as do Aboriginal peoples in Canada. This unifies the book, and reminds readers of important truths of colonial legacies both North and South.
The rest of this detailed and interesting review is here.
Monday, December 3, 2007
Reviewed: Jackson, From Civil Rights to Human Rights: Martin Luther King, Jr. and the Struggle for Economic Justice
Thomas F. Jackson, From Civil Rights to Human Rights: Martin Luther King Jr. and the Struggle for Economic Justice (University of Pennsylvania Press, 2007) is reviewed for H-1960s by Norman Markowitz, Department of History, Rutgers University, New Brunswick. Markowitz writes, in part:
Martin Luther King Jr. is perhaps the most revered American of the second half of the twentieth century, an American who, like Abraham Lincoln and Franklin Delano Roosevelt, symbolized for people throughout the world "another America" committed to the struggle for social progress and social justice. This image stood in sharp contrast to the way that many abroad have come to see the U.S, that is, a nation whose cavalry at home and gun boats abroad cleared the way for the "manifest destiny" or "American dream" of limitless wealth and power without social responsibility. King has also been honored in recent years in the United States, even by those who fought against the civil rights movement that he led and today "spin" his teaching to attack affirmative action as "reverse racism" and abandonment of his "dream." In public schools and through mass media, King is regularly praised as a "great man" who preached and practiced non-violence--the "good" black leader,because he was non-violent, measured against "bad" black leaders, such as Malcolm X, the Black Panther Party, and others who are associated with violence. The danger exists that King will become, in the twenty-first century, what novelist Sinclair Lewis cynically called Abraham Lincoln in the 1920s, "the Patron Saint of America," a symbol to be honored and forgotten. Earlier generations of Americans believed that once slavery had ended nothing more needed to be done to promote racial justice; similarly, will later generations remember King for helping to end de jure segregation and conclude that nothing more has to be done?
In From Civil Rights to Human Rights, Thomas Jackson deals with King's economic social philosophy and the relationship of that philosophy to ideas, ideals, and movements that have been called socialism since the mid-nineteenth century. Unlike most other works (with the exception of Manning Marable's treatment of King's socialist leanings in his cogent and brilliant short history of African Americans after the Second World War, Race, Reform, and Rebellion: The Second Reconstruction and Beyond in Black America, 1945-2006 [2007]), Jackson suggests that both a socialist analysis of the African American condition and socialist solutions to the larger problem of racism in U.S. society are central to an understanding of King. Jackson's work, if it is read widely and its insights and evidence "trickles down" into public education, will help students understand King and both the American and global context of events that both influenced him and that he helped to change.
In analyzing holistically King's economic social philosophy, Jackson helps scholars and students see a much more fully rounded and developed Martin Luther King. Like most successful leaders who challenged powerful establishment forces, he understood that successful political action is centered on strategies and tactics to both win over and change the political center; that successful actions are worth much more than emancipation proclamations or revolutionary manifestoes; and that successful "pragmatic" politics is always about maintaining both principals and long-term strategies while shifting and adapting tactics to changing conditions. Although the ideas of Mohandas K. Gandhi and the influence of the tactics and strategies of the Indian National Independence movement on King are widely and sometimes ritualistically cited, Jackson connects both the international anti-colonial context of the 1950s and King's application of internationalism to U.S.institutional racism in a way that others have not Most biographers of King and historians of the Civil Rights movement have portrayed him as a mass leader, but Jackson shows specifically how King developed a socialist and internationalist oriented ideology and applied it to American conditions. In effect, King became for the mass movement something like a great "center" in basketball (to use a sports metaphor), through which both offensive and defensive action flowed.Others were the practical organizers, the playmakers or point guards.But, without the center, without his ability to absorb punishment and keep the action around him moving, particularly the players without the ball (the masses of African American people and their civil rights movement allies), and the team would fail. Although some historians have stressed the limitations of the Southern based civil rights movement,especially its lack of any program beyond the elimination of de jure segregation and the establishment of elemental citizenship rights that northern blacks already enjoyed, Jackson shows clearly that King always viewed economic and social rights as essential components of civil rights.
For King, the defeat and destruction of segregation in the South was a necessary condition to the establishment of broad economic and social rights for Northern blacks, other minorities, and the white poor. King's larger socialist orientation, Jackson shows, led him to understand that racism directed against African Americans both obscured and intensified class oppression. While he always saw himself as a southerner, he pointed to the poverty of the white South which segregation and institutional racism had buttressed. Against those who,in the 1950s and afterwards, saw poverty and public assistance as a"Negro problem," King answered that it was a much larger social problem,because the great majority of those on public assistance were white.Jackson portrays King both maneuvering politically and broadening his philosophy of economic and social justice into the necessary foundation of both domestic and international peace from the mid-1950s to his murder in 1968. In the process, he examines King's relationships with a wide variety of activists and allies, from Bayard Rustin and Stanley Levison to John Lewis and James Foreman, in a fresh way. Unlike Taylor Branch and other King scholars, Jackson transcends the Cold War framework of the time which portrayed J. Edgar Hoover's FBI as an anti-Civil Rights police force (which the evidence supports massively) and Communists and former Communists as either marginal or self-seekers. Jackson shows King as a mass leader who developed bonds with people of the broad left whose experiences in the Communist Party, USA, and other socialist groups and organizations had made them not only skilled and experienced organizers, but coworkers and friends whom he could trust because his larger vision and theirs had much in common, even if their earlier social background, work, and political associations had been very different. Jackson's framework, as he applies it to the larger political narrative of King's life and work, helps scholars and students to understand the worldview that King developed as he led the most significant American mass movement in the second half of the twentieth century. This movement whose achievements, however however incomplete,continues is the subject of debate and controversy today on such issues as the enforcement of civil rights legislation, affirmative action, and equal justice under the criminal justice system.
In From Civil Rights to Human Rights, Thomas Jackson deals with King's economic social philosophy and the relationship of that philosophy to ideas, ideals, and movements that have been called socialism since the mid-nineteenth century. Unlike most other works (with the exception of Manning Marable's treatment of King's socialist leanings in his cogent and brilliant short history of African Americans after the Second World War, Race, Reform, and Rebellion: The Second Reconstruction and Beyond in Black America, 1945-2006 [2007]), Jackson suggests that both a socialist analysis of the African American condition and socialist solutions to the larger problem of racism in U.S. society are central to an understanding of King. Jackson's work, if it is read widely and its insights and evidence "trickles down" into public education, will help students understand King and both the American and global context of events that both influenced him and that he helped to change.
In analyzing holistically King's economic social philosophy, Jackson helps scholars and students see a much more fully rounded and developed Martin Luther King. Like most successful leaders who challenged powerful establishment forces, he understood that successful political action is centered on strategies and tactics to both win over and change the political center; that successful actions are worth much more than emancipation proclamations or revolutionary manifestoes; and that successful "pragmatic" politics is always about maintaining both principals and long-term strategies while shifting and adapting tactics to changing conditions. Although the ideas of Mohandas K. Gandhi and the influence of the tactics and strategies of the Indian National Independence movement on King are widely and sometimes ritualistically cited, Jackson connects both the international anti-colonial context of the 1950s and King's application of internationalism to U.S.institutional racism in a way that others have not Most biographers of King and historians of the Civil Rights movement have portrayed him as a mass leader, but Jackson shows specifically how King developed a socialist and internationalist oriented ideology and applied it to American conditions. In effect, King became for the mass movement something like a great "center" in basketball (to use a sports metaphor), through which both offensive and defensive action flowed.Others were the practical organizers, the playmakers or point guards.But, without the center, without his ability to absorb punishment and keep the action around him moving, particularly the players without the ball (the masses of African American people and their civil rights movement allies), and the team would fail. Although some historians have stressed the limitations of the Southern based civil rights movement,especially its lack of any program beyond the elimination of de jure segregation and the establishment of elemental citizenship rights that northern blacks already enjoyed, Jackson shows clearly that King always viewed economic and social rights as essential components of civil rights.
For King, the defeat and destruction of segregation in the South was a necessary condition to the establishment of broad economic and social rights for Northern blacks, other minorities, and the white poor. King's larger socialist orientation, Jackson shows, led him to understand that racism directed against African Americans both obscured and intensified class oppression. While he always saw himself as a southerner, he pointed to the poverty of the white South which segregation and institutional racism had buttressed. Against those who,in the 1950s and afterwards, saw poverty and public assistance as a"Negro problem," King answered that it was a much larger social problem,because the great majority of those on public assistance were white.Jackson portrays King both maneuvering politically and broadening his philosophy of economic and social justice into the necessary foundation of both domestic and international peace from the mid-1950s to his murder in 1968. In the process, he examines King's relationships with a wide variety of activists and allies, from Bayard Rustin and Stanley Levison to John Lewis and James Foreman, in a fresh way. Unlike Taylor Branch and other King scholars, Jackson transcends the Cold War framework of the time which portrayed J. Edgar Hoover's FBI as an anti-Civil Rights police force (which the evidence supports massively) and Communists and former Communists as either marginal or self-seekers. Jackson shows King as a mass leader who developed bonds with people of the broad left whose experiences in the Communist Party, USA, and other socialist groups and organizations had made them not only skilled and experienced organizers, but coworkers and friends whom he could trust because his larger vision and theirs had much in common, even if their earlier social background, work, and political associations had been very different. Jackson's framework, as he applies it to the larger political narrative of King's life and work, helps scholars and students to understand the worldview that King developed as he led the most significant American mass movement in the second half of the twentieth century. This movement whose achievements, however however incomplete,continues is the subject of debate and controversy today on such issues as the enforcement of civil rights legislation, affirmative action, and equal justice under the criminal justice system.
Continue reading here.
New Blog on Islamic Law
Haider Ala Hamoudi, University of Pittsburgh School of Law, has just started a new blog, Islamic Law in Our Time. Hamoudi explains in his first post, "What's Wrong with the Study of Islamic Law Today":
Welcome to the blogosphere!
In order to demonstrate the crisis, and it is most definitely a crisis, in the way that Islamic law is approached and understood today, I'd like to draw on two very recent news stories concerning Saudi Arabia and the Sudan, respectively. In Saudi Arabia, a woman was sentenced to 90 lashes (raised to 200 lashes on appeal) for "Unlawful Seclusion" with a man not her husband (her ex fiance) prior to being gang raped (along with her ex fiance) by seven individuals. Apparently she was in a car with the ex fiance, though beyond this the circumstances are largely disputed. In the Sudan, a by all accounts well meaning English schoolteacher named a class teddy bear Muhammad at the request of the class (a common name throughout the Muslim world). She has been convicted of a crime under Article 125 of the Sudanese criminal code and has been sentenced to fifteen days in prison and exile. The maximum punishment under the act could have been 40 lashes or six months inContinue reading here.
prison. Throughout the past few days, I have been asked whether or not all of this nonsense is "Islamic law." The answer, of course, depends very much on what "Islamic law" is supposed to mean.
Welcome to the blogosphere!
Conservatives and Hiroshima, then and now
Leo Maley III and Uday Mohan have an interesting essay on History News Network today: Conservative Revisionists and Hiroshima. Maley has taught at the U
niversity of Massachusetts-Amherst and the University of Maryland, College Park, and Mohan is the director of research for the Nuclear Studies Institute, American University. They begin:
When Paul Tibbets, pilot of the plane that dropped an atomic bomb on the Japanese city of Hiroshima 62 years ago, died earlier this month, conservative commentators responded true to form.
They declared Tibbets to be a hero. They stridently defended the use of the atomic bomb. And they took the opportunity to denounce any and all critics of the atomic bombing of Japanese cities as “left-wingers,” “self-haters,” “wacko communists,” “ultraliberal Americans,” “idealistic fools,” and (one of our favorites) “peace-at-any-pricers and ban-the-bombers.”
Such free use of epithets by conservatives to characterize anyone who disagrees with them on this issue poisons public debate, delays the day when many Americans will grapple with the consequences of having used nuclear weapons, and distorts history.
Mainstream American conservatives—not leftists, as we are led to believe—have been among the most vocal critics of the atomic bombing of Hiroshima. Consider the following:
On August 8, 1945, two days after the bombing, former Republican President Herbert Hoover wrote to a friend that "[t]he use of the atomic bomb, with its indiscriminate killing of women and children, revolts my soul."
Days later, David Lawrence, the conservative owner and editor of U.S. News (now U.S. News & World Report), argued that Japan's surrender had been inevitable without the atomic bomb. He added that justifications of "military necessity" will "never erase from our minds the simple truth that we, of all civilized nations . . . did not hesitate to employ the most destructive weapon of all times indiscriminately against men, women and children."
niversity of Massachusetts-Amherst and the University of Maryland, College Park, and Mohan is the director of research for the Nuclear Studies Institute, American University. They begin:When Paul Tibbets, pilot of the plane that dropped an atomic bomb on the Japanese city of Hiroshima 62 years ago, died earlier this month, conservative commentators responded true to form.
They declared Tibbets to be a hero. They stridently defended the use of the atomic bomb. And they took the opportunity to denounce any and all critics of the atomic bombing of Japanese cities as “left-wingers,” “self-haters,” “wacko communists,” “ultraliberal Americans,” “idealistic fools,” and (one of our favorites) “peace-at-any-pricers and ban-the-bombers.”
Such free use of epithets by conservatives to characterize anyone who disagrees with them on this issue poisons public debate, delays the day when many Americans will grapple with the consequences of having used nuclear weapons, and distorts history.
Mainstream American conservatives—not leftists, as we are led to believe—have been among the most vocal critics of the atomic bombing of Hiroshima. Consider the following:
On August 8, 1945, two days after the bombing, former Republican President Herbert Hoover wrote to a friend that "[t]he use of the atomic bomb, with its indiscriminate killing of women and children, revolts my soul."
Days later, David Lawrence, the conservative owner and editor of U.S. News (now U.S. News & World Report), argued that Japan's surrender had been inevitable without the atomic bomb. He added that justifications of "military necessity" will "never erase from our minds the simple truth that we, of all civilized nations . . . did not hesitate to employ the most destructive weapon of all times indiscriminately against men, women and children."
The rest is here.
Photo credit: first atomic bomb test.
Sunday, December 2, 2007
Reviewed: Abramson, The Secret Circuit: The Little-Known Court Where the Rules of the Information Age Unfold
A book on the patent court is a trade book! Today the San Francisco Chronicle reviews The Secret Circuit: The Little-Known Court Where the Rules of the Information Age Unfold by Bruce D. Abramson (ROWMAN & LITTLEFIELD). At just under $35 for the paperback, sales will probably not be brisk, but how nice that the Chronicle noticed the book. Perhaps the press should knock down the price, increase the print run and market the book during the holiday season, when everyone will buy it for their favorite patent seeker (of which there are many). Joshua Spivak writes, in part:
In "The Secret Circuit: The Little-Known Court Where the Rules of the Information Age Unfold," Bruce Abramson, author of "Digital Phoenix," a study of the information economy's collapse and revitalization, pulls back the curtain of American legal and economic policy to provide an engaging discussion of the recent developments and debates that have led to the creation of the country's strong patent system. Focusing on the relatively obscure U.S. Court of Appeals for the Federal Circuit in Washington, Abramson provides an excellent discussion of how and why America's politicians decided to strengthen patent protection, what this new arrangement meant for the American economy and whether further reforms need to be undertaken. Though the end of the book gets a little lost in the minutiae of the circuit court's non-intellectual property caseload, the overall work is sound, providing a great examination of an important engine for America's economic growth.
Abramson takes the reader back to the pre-reform period, where he shows how a focus on making patents easy to get yet difficult to enforce - plus a crazy quilt of appellate laws across the nation, which allowed companies to seek out courts that they knew would not uphold a patent - helped diminish the importance of intellectual property. While the federal government owned a huge number of patents, created by professors and universities using federal grant research, these patents were rarely turned into viable products, thanks to bureaucratic problems. And because of the law, universities were unable to make money from their extensive scientific-research portfolios developed through those federal grants.
A 1978 federal policy review inspired changes. With surprising bipartisan support, Congress and the Carter and Reagan administrations enacted several laws that reformed the patent system. Some are well known in legal circles, such as the Bayh-Dole Act, which unlocked the value of federally owned, university created patents by making it significantly easier for universities to receive and license the patents.
One of the key decisions, and the basis for the book, was to designate one federal appellate circuit as the gatekeeper for the law.
The rest is here.
In "The Secret Circuit: The Little-Known Court Where the Rules of the Information Age Unfold," Bruce Abramson, author of "Digital Phoenix," a study of the information economy's collapse and revitalization, pulls back the curtain of American legal and economic policy to provide an engaging discussion of the recent developments and debates that have led to the creation of the country's strong patent system. Focusing on the relatively obscure U.S. Court of Appeals for the Federal Circuit in Washington, Abramson provides an excellent discussion of how and why America's politicians decided to strengthen patent protection, what this new arrangement meant for the American economy and whether further reforms need to be undertaken. Though the end of the book gets a little lost in the minutiae of the circuit court's non-intellectual property caseload, the overall work is sound, providing a great examination of an important engine for America's economic growth.
Abramson takes the reader back to the pre-reform period, where he shows how a focus on making patents easy to get yet difficult to enforce - plus a crazy quilt of appellate laws across the nation, which allowed companies to seek out courts that they knew would not uphold a patent - helped diminish the importance of intellectual property. While the federal government owned a huge number of patents, created by professors and universities using federal grant research, these patents were rarely turned into viable products, thanks to bureaucratic problems. And because of the law, universities were unable to make money from their extensive scientific-research portfolios developed through those federal grants.
A 1978 federal policy review inspired changes. With surprising bipartisan support, Congress and the Carter and Reagan administrations enacted several laws that reformed the patent system. Some are well known in legal circles, such as the Bayh-Dole Act, which unlocked the value of federally owned, university created patents by making it significantly easier for universities to receive and license the patents.
One of the key decisions, and the basis for the book, was to designate one federal appellate circuit as the gatekeeper for the law.
The rest is here.
Best Books and Holiday Books
Several newspapers are featuring "Holiday Books" and lists of the best books of 2007. Here are selected titles from the lists:
Holiday Books
New York Times
The Times (London)
Best Books
History selections include:
American Creation, by Joseph J. Ellis (Knopf). Gives the founders their full due but insists that they made serious mistakes. - Jonathan Yardley
Dry Manhattan, by Michael A. Lerner (Harvard). Exceptionally interesting. Lerner accurately observes that Prohibition was the most ambitious attempt to legislate morality and personal behavior in the history of the modern United States. - JY
Legacy of Ashes, by Tim Weiner (Doubleday). He paints a devastating portrait of the CIA as an agency run, during the height of its power, by Ivy League incompetents. Must reading. - David Wise
Medical Apartheid, by Harriet A. Washington (Doubleday). The Tuskegee Syphilis Study remains an ignominious milestone in the intertwined histories of race and medical science in U.S. society. A courageous and poignant book. - Alondra Nelson
Mongrels, Bastards, Orphans and Vagabonds, by Gregory Rodriguez (Pantheon). A fascinating excursion through the history of Mexican immigrants in the United States. - Pamela Constable
The Most Noble Adventure, by Greg Behrman (Free). Meticulously researched. Behrman vividly describes many of the larger-than-life individuals who converged to design and execute the Marshall Plan. - Moises Naim
Nixon and Mao, by Margaret MacMillan (RH). MacMillan, who has availed herself of some valuable new interviews, narrates the history beautifully. - Orville Schell
Paris, by Andrew Hussey (Bloomsbury). A breathless race across more than 2,000 years of massacres, revolutions, insurrections, riots, wars, beheadings, plagues and poverty. The rat's-eye view. - Molly Moore
The Road to Disunion, by William W. Freehling (Oxford). The second and concluding volume of Freehling's splendid, painstaking account of the setting of the stage for the Civil War. - Jon Meacham
Sacco & Vanzetti, by Bruce Watson (Viking). The literature of the case is vast, but surprisingly little of it provides as balanced and unemotional a survey as this volume does. - JY
Unruly Americans and the Origins of the Constitution, by Woody Holton (Hill & Wang). This lively, provocative book disputes the idea that the Founding Fathers wrote the Constitution to protect civil liberties. They wanted, he says, to make the United States more attractive to investors. - Pauline Maier
West from Appomattox, by Heather Cox Richardson (Yale). Argues that the years after the Civil War saw nothing less than the reconstruction of America, a recasting of the relationship between the government and the people. Engaging and reveals much that is fresh. - Edward L. Ayers
What Hath God Wrought, by Daniel Walker Howe (Oxford). The period between the end of the War of 1812 and the Mexican American War in 1848 is one of the most important in American history. Howe brings an impressive array of strengths to the daunting task of encapsulating these decades in a single volume. - JY
New York Times ("notable" books)
The list includes:
AMERICAN CREATION: Triumphs and Tragedies at the Founding of the Republic. By Joseph J. Ellis. (Knopf, $26.95.) This history explores an underappreciated point: that this country was constructed to foster arguments, not to settle them.
ARSENALS OF FOLLY: The Making of the Nuclear Arms Race. By Richard Rhodes. (Knopf, $28.95.) This artful history focuses on the events leading up to the pivotal 1986 Reykjavik summit meeting between Reagan and Gorbachev.
DRIVEN OUT: The Forgotten War Against Chinese Americans. By Jean Pfaelzer. (Random House, $27.95.) How the Chinese were brutalized and demonized in the 19th-century American West — and how they fought back.
LEGACY OF ASHES: The History of the CIA. By Tim Weiner. (Doubleday, $27.95.) A comprehensive chronicle of the American intelligence agency, from the days of the Iron Curtain to Iraq, by a reporter for The New York Times.
THE NINE: Inside the Secret World of the Supreme Court. By Jeffrey Toobin. (Doubleday, $27.95.) An erudite outsider’s account of the cloistered court’s inner workings.
Boston Globe
Nonfiction books include:
Unruly Americans and the Origins of the Constitution By Woody Holton
Photo credit.
Holiday BooksNew York Times
The Times (London)
Best Books
Washington Post
History selections include:
American Creation, by Joseph J. Ellis (Knopf). Gives the founders their full due but insists that they made serious mistakes. - Jonathan Yardley
Dry Manhattan, by Michael A. Lerner (Harvard). Exceptionally interesting. Lerner accurately observes that Prohibition was the most ambitious attempt to legislate morality and personal behavior in the history of the modern United States. - JY
Legacy of Ashes, by Tim Weiner (Doubleday). He paints a devastating portrait of the CIA as an agency run, during the height of its power, by Ivy League incompetents. Must reading. - David Wise
Medical Apartheid, by Harriet A. Washington (Doubleday). The Tuskegee Syphilis Study remains an ignominious milestone in the intertwined histories of race and medical science in U.S. society. A courageous and poignant book. - Alondra Nelson
Mongrels, Bastards, Orphans and Vagabonds, by Gregory Rodriguez (Pantheon). A fascinating excursion through the history of Mexican immigrants in the United States. - Pamela Constable
The Most Noble Adventure, by Greg Behrman (Free). Meticulously researched. Behrman vividly describes many of the larger-than-life individuals who converged to design and execute the Marshall Plan. - Moises Naim
Nixon and Mao, by Margaret MacMillan (RH). MacMillan, who has availed herself of some valuable new interviews, narrates the history beautifully. - Orville Schell
Paris, by Andrew Hussey (Bloomsbury). A breathless race across more than 2,000 years of massacres, revolutions, insurrections, riots, wars, beheadings, plagues and poverty. The rat's-eye view. - Molly Moore
The Road to Disunion, by William W. Freehling (Oxford). The second and concluding volume of Freehling's splendid, painstaking account of the setting of the stage for the Civil War. - Jon Meacham
Sacco & Vanzetti, by Bruce Watson (Viking). The literature of the case is vast, but surprisingly little of it provides as balanced and unemotional a survey as this volume does. - JY
Unruly Americans and the Origins of the Constitution, by Woody Holton (Hill & Wang). This lively, provocative book disputes the idea that the Founding Fathers wrote the Constitution to protect civil liberties. They wanted, he says, to make the United States more attractive to investors. - Pauline Maier
West from Appomattox, by Heather Cox Richardson (Yale). Argues that the years after the Civil War saw nothing less than the reconstruction of America, a recasting of the relationship between the government and the people. Engaging and reveals much that is fresh. - Edward L. Ayers
What Hath God Wrought, by Daniel Walker Howe (Oxford). The period between the end of the War of 1812 and the Mexican American War in 1848 is one of the most important in American history. Howe brings an impressive array of strengths to the daunting task of encapsulating these decades in a single volume. - JY
New York Times ("notable" books)
The list includes:
ALEXIS DE TOCQUEVILLE: A Life. By Hugh Brogan. (Yale University, $35.) Brogan’s combative biography takes issue with Tocqueville’s misgivings about democracy.
AMERICAN CREATION: Triumphs and Tragedies at the Founding of the Republic. By Joseph J. Ellis. (Knopf, $26.95.) This history explores an underappreciated point: that this country was constructed to foster arguments, not to settle them.
ARSENALS OF FOLLY: The Making of the Nuclear Arms Race. By Richard Rhodes. (Knopf, $28.95.) This artful history focuses on the events leading up to the pivotal 1986 Reykjavik summit meeting between Reagan and Gorbachev.
DRIVEN OUT: The Forgotten War Against Chinese Americans. By Jean Pfaelzer. (Random House, $27.95.) How the Chinese were brutalized and demonized in the 19th-century American West — and how they fought back.
LEGACY OF ASHES: The History of the CIA. By Tim Weiner. (Doubleday, $27.95.) A comprehensive chronicle of the American intelligence agency, from the days of the Iron Curtain to Iraq, by a reporter for The New York Times.
THE NINE: Inside the Secret World of the Supreme Court. By Jeffrey Toobin. (Doubleday, $27.95.) An erudite outsider’s account of the cloistered court’s inner workings.
Boston Globe
Nonfiction books include:
Legacy of Ashes By Tim Weiner
Unruly Americans and the Origins of the Constitution By Woody Holton
Photo credit.
Friday, November 30, 2007
Graber reviews Frymer, Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party
Mark Graber discusses Paul Frymer's new book, Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party (Princeton University Press) at Balkinization. According to Graber, Black and Blue
is an exceptional study of the relationships between the civil rights and la
bor movements during the second half of the twentieth century. Professor Frymer of the University of California, Santa Cruz, challenges both the common view in political science that courts cannot bring about social change, and the common view in law that courts are desirable agents for social change. The result is a far more nuanced understanding of the role of courts in American political and constitutional development. Judicial decisions matter, but they matter for reasons that confound scholars and policy activists. The book also tackles important problems in the politics of race. Race matters Professor Frymer concludes (not exactly a surprise so far), but race matters as a political phenomenon intertwined with constitutional institutions, and not simply as bad thoughts. Some institutions are structured in ways that privilege racism, others in ways that promote liberal equality. The American labor regime, alas, too often had the former characteristics.
Professor Frymer’s story begins with African-Americans seeking entry to labor unions. Entry is desirable because in the early to mid-New Deal Order, labor unions promised members both economic security and political power. Entry was also problematic because whereas previous labor struggles had pitted liberals against conservatives, efforts to integrate labor unions pit racial liberals against economic liberals. The challenge was how to achieve the goals of both so that each would remain a pillar of liberal political power. This challenge was not successfully hurdled. Black and Blue highlights how labor and civil rights had, in effect, established separate governing regimes during the 1930s and 1960s. The result was that when civil rights decisions were made consistent with the regime set up by the Civil Rights Act of 1964, those rulings frequently weakened the labor friendly regime set up by the Wagner Act of 1936.
Litigating civil rights had far more ambiguous results than inherited wisdom proclaims, whether that wisdom celebrates or bashes courts. On the one hand, Frymer documents a liberal success story. Contrary to Gerald Rosenberg and others, courts were able to produce substantial integration. For reasons often unrelated to civil rights struggles, trial lawyers and judges during the middle of the twentieth century facilitated lawsuits as a means of vindicating legal wrongs. Courts could not reshape institutions on their own, but they could order large damages (notice the important riff on the autonomy of law here). These large damages attracted lawyers to civil rights causes and threatened to bankrupt racist unions. The result was a good deal of litigation, a good deal of success, and a good deal more integration as a result of that success than existing models claimed was possible. Controversial judicial decisions do get implemented when, for various reasons, judicial losers cannot rally sufficient political support and those decisions impose substantial financial burdens on the losers. Nevertheless, these victories came with unanticipated costs. The immediate problem with going through the courts was that judicial winner-take all decrees increased antagonisms between two vital democratic constituencies, thus weakening the power of liberals to make policy in general. Faced with liberal politicians unwilling to take clear sides between African-Americans and labor, many union members turned to more conservative politicians. Second, labor unions could be integrated only by means that weakened the economic and political capacity of unions. Thus, while unions are presently integrated and some are now almost completely non-white, unions no longer exercise the power than made them politically attractive to liberals during the late 1960s. Judicial decisions weakened seniority systems and independent labor government. Significantly, Frymer points out, much civil rights litigation on these matters was financed by corporate lawyers and law firms, who had little interest in unionization. In short, courts were able to facilitate black entry into labor unions only by weakening labor unions as a vehicle for black economic and political power.
There is substantial grist in this mill for students of American constitutionalism, American politics, and American political development. Professor Frymer is particularly effective when demonstrating how institutional strategies Democrats employed to consolidated power during the New Deal created a political clash that destroyed liberal power during the Great Society. The Roosevelt coalition moved along two institutional paths. On the one hand, that coalition sought to take labor policy away from hostile courts and vest authority in more friendly legislatures and administrative agencies. On the other hand, prominent New Dealers sought to take race policy away from conservative southern Democrats in Congress and vest that policy in the more liberal justices staffing the federal judiciary, particular the northern circuits. Much has been written on how the latter policy increased tensions between the northern and southern wings of the Democratic Party during the 1940s and 1950s, eventually resulting in the destruction of the solid South in 1964. What Frymer demonstrates is that the same institutional choices had a similarly destructive outcome in the north, as racial liberals who identified with courts did battle with economic liberals who identified with elected officials. His study of the particular details of this struggle, as well as the institutional circumstances that guided the struggle will be discussed for years to come.
bor movements during the second half of the twentieth century. Professor Frymer of the University of California, Santa Cruz, challenges both the common view in political science that courts cannot bring about social change, and the common view in law that courts are desirable agents for social change. The result is a far more nuanced understanding of the role of courts in American political and constitutional development. Judicial decisions matter, but they matter for reasons that confound scholars and policy activists. The book also tackles important problems in the politics of race. Race matters Professor Frymer concludes (not exactly a surprise so far), but race matters as a political phenomenon intertwined with constitutional institutions, and not simply as bad thoughts. Some institutions are structured in ways that privilege racism, others in ways that promote liberal equality. The American labor regime, alas, too often had the former characteristics.Professor Frymer’s story begins with African-Americans seeking entry to labor unions. Entry is desirable because in the early to mid-New Deal Order, labor unions promised members both economic security and political power. Entry was also problematic because whereas previous labor struggles had pitted liberals against conservatives, efforts to integrate labor unions pit racial liberals against economic liberals. The challenge was how to achieve the goals of both so that each would remain a pillar of liberal political power. This challenge was not successfully hurdled. Black and Blue highlights how labor and civil rights had, in effect, established separate governing regimes during the 1930s and 1960s. The result was that when civil rights decisions were made consistent with the regime set up by the Civil Rights Act of 1964, those rulings frequently weakened the labor friendly regime set up by the Wagner Act of 1936.
Litigating civil rights had far more ambiguous results than inherited wisdom proclaims, whether that wisdom celebrates or bashes courts. On the one hand, Frymer documents a liberal success story. Contrary to Gerald Rosenberg and others, courts were able to produce substantial integration. For reasons often unrelated to civil rights struggles, trial lawyers and judges during the middle of the twentieth century facilitated lawsuits as a means of vindicating legal wrongs. Courts could not reshape institutions on their own, but they could order large damages (notice the important riff on the autonomy of law here). These large damages attracted lawyers to civil rights causes and threatened to bankrupt racist unions. The result was a good deal of litigation, a good deal of success, and a good deal more integration as a result of that success than existing models claimed was possible. Controversial judicial decisions do get implemented when, for various reasons, judicial losers cannot rally sufficient political support and those decisions impose substantial financial burdens on the losers. Nevertheless, these victories came with unanticipated costs. The immediate problem with going through the courts was that judicial winner-take all decrees increased antagonisms between two vital democratic constituencies, thus weakening the power of liberals to make policy in general. Faced with liberal politicians unwilling to take clear sides between African-Americans and labor, many union members turned to more conservative politicians. Second, labor unions could be integrated only by means that weakened the economic and political capacity of unions. Thus, while unions are presently integrated and some are now almost completely non-white, unions no longer exercise the power than made them politically attractive to liberals during the late 1960s. Judicial decisions weakened seniority systems and independent labor government. Significantly, Frymer points out, much civil rights litigation on these matters was financed by corporate lawyers and law firms, who had little interest in unionization. In short, courts were able to facilitate black entry into labor unions only by weakening labor unions as a vehicle for black economic and political power.
There is substantial grist in this mill for students of American constitutionalism, American politics, and American political development. Professor Frymer is particularly effective when demonstrating how institutional strategies Democrats employed to consolidated power during the New Deal created a political clash that destroyed liberal power during the Great Society. The Roosevelt coalition moved along two institutional paths. On the one hand, that coalition sought to take labor policy away from hostile courts and vest authority in more friendly legislatures and administrative agencies. On the other hand, prominent New Dealers sought to take race policy away from conservative southern Democrats in Congress and vest that policy in the more liberal justices staffing the federal judiciary, particular the northern circuits. Much has been written on how the latter policy increased tensions between the northern and southern wings of the Democratic Party during the 1940s and 1950s, eventually resulting in the destruction of the solid South in 1964. What Frymer demonstrates is that the same institutional choices had a similarly destructive outcome in the north, as racial liberals who identified with courts did battle with economic liberals who identified with elected officials. His study of the particular details of this struggle, as well as the institutional circumstances that guided the struggle will be discussed for years to come.
Gerteis reviews Hamilton, The Limits of Sovereignty: Property Confiscation in the Union and Confederacy during the Civil War
Daniel W. Hamilton, The Limits of Sovereignty: Property Confiscation in the Union and the Confederacy during the Civil War (University of Chicago Press, 2007) is reviewed for H-CivWar by Louis S. Gerteis, Department of History, University of Missouri-St. Louis. Gerteis writes, in part:
Trumbull's plan failed. Most Republicans embraced the vested rights doctrine and shrank from legislative confiscation. Historians have noted for many years that central government powers expanded significantly after the Civil War. But, in this area, as Hamilton notes, congress imposed new limits on its powers. What emerged as the Second Confiscation Act followed Lincoln's view that confiscation must be linked to treason trials and limited to life estates. The only sweeping passage of the Second Confiscation Act was its provision for the immediate liberation of slaves of disloyal masters....The doctrine of vested property rights overwhelmed Trumbull's confiscation efforts and it continued to gain strength in the post war Supreme Court.
On the topic of wartime confiscation Abraham Lincoln insisted that the Constitution governed the issue for Congress. The Constitution gave Congress full authority to determine the punishment for treason, but Article III, section 3 stipulated that "no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained." In this insightful and illuminating new study, Daniel Hamilton acknowledges that Lincoln succeeded in linking the issue of confiscation to treason and imposing the life estate limit on confiscation. But Hamilton locates his study within a wider analysis of the development of property rights theory. Hamilton begins with an examination of the widespread confiscation of Tory property carried out by states during the American Revolution. Here he identifies a republican view of property rights linked to loyalty to a sovereign power. This community based sense of property rights held that disloyalty to a sovereign power caused property rights to be extinguished.
As Hamilton demonstrates, some Republicans invoked this older view of property rights when they argued in favor of widespread confiscation and land redistribution during the Civil War. Former slaves similarly hoped that their loyalty to the Union might bring them "Forty Acres and a Mule" in freedom. It is the central thesis of Hamilton's work that widespread confiscation failed during the Civil War because a newer doctrine of individual property rights overcame the older association of property rights with loyalty to a sovereign. During the first half of the nineteenth century, writes Hamilton, "an individualized, rights-oriented conception of property gained increasing dominance in American law and in constitutional interpretation." In the postwar years, the Supreme Court, often led by Justice Stephen Field, reinforced the liberal theory of property rights and thoroughly rejected the older "conception of property ultimately held at the sufferance of the sovereign" (p. 9)....
As Hamilton demonstrates, some Republicans invoked this older view of property rights when they argued in favor of widespread confiscation and land redistribution during the Civil War. Former slaves similarly hoped that their loyalty to the Union might bring them "Forty Acres and a Mule" in freedom. It is the central thesis of Hamilton's work that widespread confiscation failed during the Civil War because a newer doctrine of individual property rights overcame the older association of property rights with loyalty to a sovereign. During the first half of the nineteenth century, writes Hamilton, "an individualized, rights-oriented conception of property gained increasing dominance in American law and in constitutional interpretation." In the postwar years, the Supreme Court, often led by Justice Stephen Field, reinforced the liberal theory of property rights and thoroughly rejected the older "conception of property ultimately held at the sufferance of the sovereign" (p. 9)....
Legislative confiscation is the central focus of Hamilton's work. The widespread use of confiscation by state legislatures during the American Revolution to seize the property of disloyal persons expressed a republican view of property rights that linked them to community stability and wellbeing. Federalists responded to what they viewed as an excess of republican zeal in this regard by drafting a Constitution that prohibited state and federal bills of attainder. Furthermore, the Fifth Amendment linked confiscation to judicial processes and significantly curtailed the Revolutionary era tradition. In the early decades of the nineteenth century, Chief Justice John Marshall built on these constitutional foundations to advance the doctrine of vested rights in property. "At the heart of the vested rights doctrine," writes Hamilton, "was the notion that the lines between legislative and judicial authority over property must be tightly drawn" (p. 46). Marshall's rigid interpretation of the Constitution's "obligations of contracts" clause drew precisely that distinction. The vested rights doctrine steadily gained authority in the first half of the nineteenth century and, during the Civil War debates over confiscation, most Republicans (with Lincoln at the forefront) embraced the"strict sanctity of private property" (p. 47). Nevertheless, a minority of Republicans held fast to elements of the older ideology.
A leading voice in this minority was Illinois Senator Lyman Trumbull. We are reminded by Michael Vorenberg's recent work on the Thirteenth Amendment and again in Hamilton's study that Trumbull deserves closer scholarly attention. Trumbull led the effort to secure broad legislative confiscation during the Civil War and doggedly resisted Lincoln's efforts to restrict confiscation by tying it to individual treason trials and limit its reach to life estates....
A leading voice in this minority was Illinois Senator Lyman Trumbull. We are reminded by Michael Vorenberg's recent work on the Thirteenth Amendment and again in Hamilton's study that Trumbull deserves closer scholarly attention. Trumbull led the effort to secure broad legislative confiscation during the Civil War and doggedly resisted Lincoln's efforts to restrict confiscation by tying it to individual treason trials and limit its reach to life estates....
Trumbull's plan failed. Most Republicans embraced the vested rights doctrine and shrank from legislative confiscation. Historians have noted for many years that central government powers expanded significantly after the Civil War. But, in this area, as Hamilton notes, congress imposed new limits on its powers. What emerged as the Second Confiscation Act followed Lincoln's view that confiscation must be linked to treason trials and limited to life estates. The only sweeping passage of the Second Confiscation Act was its provision for the immediate liberation of slaves of disloyal masters....The doctrine of vested property rights overwhelmed Trumbull's confiscation efforts and it continued to gain strength in the post war Supreme Court.
Historians of Reconstruction have long noted that Radical Republicans forged a postwar consensus supporting equal rights and universal male suffrage at the same time that they debated but never embraced a plan for land confiscation and redistribution in the defeated South. Discussions of land reform died out as Republicans retreated from Reconstruction and as southern white Redeemers, emboldened by Andrew Johnson's leniency, seized control of southern states. Hamilton suggests that this familiar Reconstruction narrative is misleading. Republicans came to power in 1861 not simply to vanquish the Slave Power but to advance a liberal legal agenda that placed the uncompensated confiscation of private property beyond the reach of legislatures.
The rest is here.
Thursday, November 29, 2007
Oz-Salzberger and Salzberger on The Secret German Sources of the Israel Supreme Court
Fania Oz-Salzberger and Eli Salzberber, both of the University of Haifa, have posted a new essay, The Secret German Sources of the Israel Supreme Court. It appeared in Israel Studies. Here's the abstract: This paper analyzes the effects of the German background and legal education of about one half of Israel's supreme court judges during the state's first three decades. After presenting the basic statistics and biographical sketches of the first-generation "German" judges of Israel's supreme court, the authors explore the significance of this collective biographical profile. Several significant court decisions are analyzed, in respect to the uses of German history, including the Nazi rise to power and the covert impact of the German legal and juridical tradition. It is suggested that the German-born and German-educated judges, despite their differences, brought a particular liberal approach to Israel's judicial branch. They were able to stand up to Ben Gurion's government from a very early stage, thus affording the young state a true and solid separation of powers. Their experience with Weimar and Nazi Germany affected their views of civil liberty, freedom of speech and the defense of democracy. They enriched Israeli public discourse by German-inspired concepts, including "a state governed by law [Rechtsstaat]" and "the enlightened public". Also discussed is the interplay of this German tradition with the Anglo-American sources of Israel's judiciary.
Webb reviews Elliott, Empires of the Atlantic World: Britain and Spain in America, 1492-1830
J. H. Elliott, Empires of the Atlantic World: Britain and Spain in America, 1492-1830 (Yale University Press, 2006) is reviewed by Todd Webb, Department of History, Laurentian University on H-Canada. Webb writes, in part:J. H. Elliott sets himself a daunting task in Empires of the Atlantic World: Britain and Spain in America, 1492-1830. Comparing two empires, focusing on the individual, local, regional, and transatlantic contexts of European expansion, he aims to counter the "black legend" of Spanish imperialism. Elliott does not deny that the Spanish process of conquest could be, and often was, brutal. He argues, however, that the viciousness and chaos of initial contact were followed by something other than centuries of inept imperial management. According to Elliott, the Spanish empire in the Americas constituted a highly complex society governed by a generally effective colonial system. It was that very complexity and stability, he attempts to demonstrate, that made the Latin American wars of independence so destructive. In this, and in many other ways, the history of Spanish America differed from the history of British America; but that does not mean that the British were better empire builders. In comparison to Spain, Britain was often utterly hapless in its dealings with the settlers of New England, Virginia, and the Middle Colonies. That Elliott goes far towards making this case, while providing a detailed survey of the rise and fall of two European powers in the Americas, is a testament to the magnitude of his achievement.
Empires of the Atlantic World is divided into three parts, each focusing on a discrete phase of the settler experience in the Americas: occupation, consolidation, and emancipation. In the first part--occupation--Elliott begins by outlining the mindset and motivation of two archetypal adventurers, the Spanish conquistador Hernan Cortes and the English captain Christopher Newport. In Elliott's reading, these two men possessed a similar mentality of conquest and both were motivated by the same zeal for wealth. Indeed, tales of Spanish success in the New World did much to whet the collective appetite of the founders of Jamestown, though, of course, their hopes of finding their own Aztec empire to overthrow and pillage were doomed to disappointment. Still, Elliott's main point is clear enough: in the beginning, the Spanish and British empires in the Americas were similar. Such differences as did exist between them--and Elliott is careful to point these out--had more to do with the varying contexts of Spanish and British settlement than with any hard-and-fast distinction between empires of conquest and commerce. This is an argument that Elliott drives home in his discussion of the impact of Spanish and British settlement on the geography, indigenous people, and resources of the Americas. In part 2, Elliott deals with the consolidation of the European presence in North and South America. He concentrates on those political, social, and religious factors that tended to pull the two colonial societies apart, including the "relatively slow and haphazard British moves towards the imposition of empire" and Spain's incorporation of its overseas territories "within an effective imperial framework" (p. 119)....The final part of Empires of the Atlantic World concentrates on the breakdown of British and Spanish imperial authority in the Americas. Elliott's contention that the colonies were shaped by "a host of personal choices and the unpredictable consequences of unforeseen events" (p. 411) comes most clearly into play in this section.
There is much to praise in Empires of the Atlantic World. It serves as a model of how Atlantic history should be done. Drawing on a vast array of secondary material, Elliott more than meets the goal he sets for himself in the introduction: a comparative study of British and Spanish settlement that deals, in equal measure, with similarities and differences and that provides explanations and analysis calculated to do justice to both. And, though concentrating on the British and Spanish settler societies in North and South America, Elliott also effectively integrates Native American groups into his narrative.
The rest, including the quibbles, is here.
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