Weekend Roundup

• The schedule for the Helsinki Legal History Series in Spring 2024 has been announced and may be downloaded here.

• "A Century’s Journey: Women at the University of Connecticut School of Law,” the fourth in the law school’s series of short histories, explores that path and touches on the inspiring stories of many UConn Law alumnae. Anne M. Hamilton, a 1973 graduate of UConn Law who became a journalist with The Hartford Courant, researched and wrote the book, which was published this month." (UConn Today).
  

• The Great Experiment: Democracy from the Founding to the Future, which was the 2023 George Washington Symposium at Mount Vernon, is now up on YouTube.  Panels include The Great Experiment: Democracy from the Founding to the Present with Historians H. W. Brands, Douglas Brinkley, Joanne Freeman, and Edna Greene Medford, in conversation moderated by Brian Lamb; The Role of the Military in a Democracy, with Generals Joseph F. Dunford, John Kelly, and Jim Mattis, in conversation moderated by Rick Atkinson; A More Perfect Union:  The Constitution: Principles and Ideas, with Mary Sarah Bilder, Michael J. Klarman, and Jeffrey Rosen, in conversation moderated by Douglas Bradburn; and The Art of Interpretation, with Judge David S. Tatel and Neal Katyal, in conversation moderated by Jeffrey Rosen.
  

• 
  Peter Radan, Honorary Professor of Law at Macquarie University is interviewed on his new book, Creating a More Perfect Slaveholders’ Union: Slavery, the Constitution, and Secession in Antebellum America (University Press of Kansas, 2023) over on Current.
  

• "The Social Sciences Collegiate Division at the University of Chicago is now accepting applications for a full-time Instructional Professor who will teach in the program in Law, Letters, and Society. The appointment is renewable, and the initial three-year term begins September 1, 2024. Appointment at the rank of Assistant, Associate, and full Instructional Professor will be considered based on the candidate’s experience." H/t: H-Net.

• On October 19, Wayne Law celebrated the life of Professor Emeritus Edward J. Littlejohn, the coauthor, with Peter Hammer, of No Equal Justice: The Legacy of Civil Rights Icon George W. Crockett Jr.
  

• ICYMI: “The Jamestown Rediscovery Foundation (JRF) was recently awarded a $25,000 grant from the Virginia Law Foundation to expand educational programming on the Rule of Law at Jamestown.  'Legacies of 1619: Law and Race at Jamestown' will explore the transformative First Assembly and the codification of race-based slavery that took place within the walls of Jamestown’s government buildings, according to JRF” (WYDaily).
  

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

"100 Years of the Infanticide Act"

100 Years of the Infanticide Act: Legacy, Impact and Future Directions, edited by Karen Brennan and Emma Milne, has been published by Hart/Bloomsbury:

This book provides the first comprehensive and detailed analysis of the Infanticide Act and its impact in England and Wales and around the world.

It is 100 years since an Infanticide Act was first passed in England and Wales. The statute, re-enacted in 1938, allows for leniency to be given to women who kill their infants within the first year of life. This legislation is unique and controversial: it creates a specific offence and defence that is available only to women who kill their biological infants. Men and other carers are not able to avail of the special mitigation provided by the Act, nor are women who kill older children.

The collection brings together leading experts in the field to offer important insights into the history of the law, how it works today, the impact and legacy of the statute and potential futures of infanticide laws around the world.

Contributors consider the Act in practice in England and Wales, the ways it has been portrayed in the British media and justifications for and criticisms of the provision of special treatment for women who kill their infants within a year of birth.

It also looks at the criminal justice responses to infanticide in other jurisdictions, such as Australia, Ireland, Sweden and the United States of America.

--Dan Ernst.  TOC after the jump.

Cromwell Dissertation Prize to Cors

At its annual meeting last month, the American Society for Legal History announced the winner of the  Cromwell Dissertation Prize, awarded by the William Nelson Cromwell Foundation in consultation with an committee of the ASLH.  The winner was Alexander M. Cors, “Newcomers and New Borders: Migration, Settlement, and Conflict over Land along the Mississippi River, 1750-1820,” Emory University, 2022.  Here is the citation:

Alexander M. Cors

This dissertation represents a sparkling contribution to what Cors terms “the legal geography of settler colonialism in the Mississippi River Valley” during a pivotal time of contact between Indigenous peoples, Europeans, and Africans. Utilizing sources in three languages from Spain, France, and four states, Cors seamlessly weaves together narratives of bottom-up experiences of individuals making claims to land under Spanish law with the expansion of state power and control over the Mississippi River territory prior to and after the Louisiana Purchase. Instead of focusing on one or two large tribal nations, Cors takes the land as his analytical frame, beautifully telling the story of how parts of four tribes moved to lands west of the river and then used Spanish land grants to protect their claims against those later made by European-Americans. The tribal claimants were surprisingly adept at achieving their goals, at least for a time, helped by Spanish legal regimes that were much friendlier to first-comers than Anglo-American law later proved to be. By focusing on the river as geography and ecosystem, Cors is able to reveal dimensions of the slave economy that relied on the mobility the river enabled. Instead of cordoning off Louisiana as a civil law territory that had little influence on surrounding states and national legal development, Cors makes Louisiana’s physical position at the mouth of the river central to the movement and migration that undergirded the expansion of slavery in the South. Settlement patterns conferred social structure, he notes, and they also conveyed legal knowledge that proved essential to maintaining property ownership during periods of transition in governance. Indeed, Cors reveals that many non-European settlers along the river resisted the imposition of colonial state power and non-native legal systems, persuading the committee of his broader argument that local land claims drove territorial law and legal practice more than treaty negotiations and national sovereignties. What makes this new history possible are the Spanish-language sources that Cors deftly mines, both for the revealing family narratives he pieces together and for new cartographic data. Cors’s maps are things of beauty, wholly original to this project, that show how indigenous communities spread along the river for decades prior to the Louisiana Purchase. The committee marveled at the way Cors advanced a deeply complex argument with beautifully crafted prose. This novel and original thesis was a joy to read and will, the committee believes, make an important and influential book.

--Dan Ernst

Dudziak Digital Legal History Prize to Simard

At its annual meeting last month, the American Society for Legal History awarded its Mary L. Dudziak Digital Legal History Prize to Justin Simard for his Citing Slavery Project.  Here is the citation.

Justin Simaud

The Citing Slavery Project, created by Justin Simard, Assistant Professor of Law at Michigan State University, and his team is a curated database of published civil case decisions from the nineteenth century involving slavery—either with enslaved people as parties or participants in the litigation or slave property as the subject of the suit. By documenting the past and continued influence of the American law of slavery via contemporary citations to slavery cases, it forces the legal profession to confront its role in American slavery. In 2021, the Bluebook added a rule in response to the project to encourage the use of a parenthetical such as (slavery case) or (enslaved party) in citations to slave cases. Seventy works of scholarship have already implemented this rule. The Citing Slavery Project achieved two major milestones during the award year. First, Professor Simard and his team completed the initial compilation of 9,000 slave cases from 42 states and territories. Second, they linked their database to Harvard’s open source Caselaw Access Project. The link is especially significant because it facilitates the project’s analytical arm (tracking primary and secondary citations to slave cases) and its publicity arm (allowing everyday users direct access to the text and original scans of the slavery opinions). The committee applauds Dr. Simard and his team for the scholarly importance and intellectual generosity of this enlightening digital legal history project.

--Dan Ernst

Job Alert: Austrian Legal and Constitutional History

We’ve recently noted the posting of an advertisement for a Tenure-Track Professor in the Field of Austrian Legal and Constitutional History at the University of Vienna.  In part it reads:

The successful applicant is expected to have outstanding achievements in research and teaching in the field of Austrian legal and constitutional history in its European and international contexts. Particular emphasis is placed on the main areas of the subject according to the curriculum of the Diploma Programme in Law (“Modern Legal and Constitutional History”: Constitutional and Private Law History; part of the module “European and International Foundations”) and the Bachelor and Master Programme in International Law (module “European and Global History”), and at least one focus in teaching and research is expected, which secures and ideally also expands the traditional spectrum of the Faculty. Applicants are expected to be familiar with the sources of Austrian legal and constitutional history and to have experience in relevant archival research. In the interest of continuing existing international cooperation, the embedding of the applicants' research in the Central and Eastern European context of Austrian legal and constitutional history is desired. In order to maintain an attractive and diverse range of courses, breadth of expertise and ability and willingness to hold courses in foreign languages are expected. Starting date: 1.10.2024

Your academic profile: Doctoral degree/PhD; two years of international research experience during or after doctoral studies; outstanding research achievements, excellent publication and funding record, international reputation; experience in designing of and participating in research projects, ability to lead research groups and acquire third-party funding; enthusiasm for excellent teaching and supervision at the bachelor's, master's, and doctoral level.

--Dan Ernst

Sutherland Prize to Stattel

At its recently concluded annual meeting the American Society for Legal History awarded its Sutherland Prize for best article on the legal history of Britain and/or the British Empire to Jake Stattel “Legal culture in the Danelaw: a study of III Aethelred,” Anglo/Saxon England 49 (2022): 163-203.  Here is the citation: 

Jake Stattel

In 997 AD King Aethelred announced two law codes: one for his English kingdoms (the Woodstock code) and one for the area known as the Danelaw (the Wantage Code). While broadly similar, the two codes also contain important differences. These differences are the subject of Stattel’s erudite and impressive essay.  Historians have usually understood these provisions as markers of the uneasy integration of Danish lands into the English kingdoms. Some see the differences as Athelred’s attempt to confirm English dominion over Danelaw territories; some see it as a necessary concession to the authority of Anglo-Scandinavian elites within the kingdom. Stattel provides a fresh approach. Reframing the question to explore what these codes reveal about legal culture rather than about the political reach of the Anglo-Saxons, Stattel sketches out some of the distinctive legal assumptions of society within the Danelaw regions. These differences, he shows us, were not minor matters of procedure but rather divergent ideas about best practice.

Focusing on collective liability, access to legal recourse, and methods of proof, Stattel makes visible the distinctiveness of Anglo-Scandinavian communities long after their submission to Anglo-Saxon monarchs. He uses an array of tools, textual and material, to trace a system in which the Danelaw was both a part of and apart from the dominant society. His sources range from language to archeology to scientific insights, from charters and chronicles to bones and isotopes. Stattel persuasively argues that the Danelaw is best understood within the context of Scandinavian traditions. In the Danelaw regions, smaller communities allowed for higher standards of mutual responsibility, more stringent requirements for invoking formal law, and a preference for fact-finding over oath-taking. These practices suggest the continued influence of the Anglo-Scandinavian elites upon the broader legal structures and in some cases, they offer early examples of what would become standard English processes.  Stattel’s arguments are clearly presented and thoughtfully constructed. Moreover, he shows us that for law as for other aspects of society, balancing written and material evidence rather than favoring one over the other pays off. This essay goes far beyond a close reading of one early law code; it has important implications for how we understand law’s ability both to reinforce power and to coopt diversity.

 --Dan Ernst

Cromwell Article Prize to Connolly

The Cromwell Article Prize is awarded by the William Nelson Cromwell Foundation, in consultation with a committee of the American Society for Legal History for the best article in American legal history by an early career scholar.   This year's prize, announced at the ASLH's recent annual meeting, went to Emilie Connolly, “Fiduciary Colonialism: Annuities and Native Dispossession in Early America,” American Historical Review 127:1 (2022): 223-253.  Here is the citation:

Emilie Connolly

Emilie Connolly’s “Fiduciary Colonialism: Annuities and Native Dispossession in Early America” examines an oft-forgotten aspect of dispossession of Native lands: compensation.  Connolly explores the consequences of payments for Native lands, focusing not on violent force, but “subtler coercions and negotiations afforded by economic relationships (226).” Central to these economic relationships between sovereign Native nations and the U.S. federal government were annuities: yearly payments made to Native peoples in specie or goods in exchange for their land. Yet such funds “evolved,” Connolly deftly shows, into longstanding economic and fiscal relationships between “sovereignties of sharply unequal power.” Annuities served to increase federal control over Native lands by holding back payments to pry land out of Native hands and compel migration. In an innovative and compelling argument, Connolly shows that such polices amounted to a “fiduciary colonialism: a mode of territorial acquisition and population management carried out through the expansion of administrative control over Native peoples’ wealth.” Importantly, therefore, fiduciary colonialism highlights the often forgotten two prong method of U.S. imperialism: indeed, Connolly demonstrates that the early United States operated not simply as a “settler colonial formation” (characterized by its deliberate attempts to erase and replace Native peoples and societies) but also as a “colonial formation” (characterized by the administration of Native people and federal trusteeship over their wealth, as well as grabbing their land). This article, the committee agreed, is a tour de force: lucid, well-sourced, and subtly argued. Her contribution to the scholarship on United States/Native relations is nothing short of remarkable. While scholars have most often focused on force and violence to explain dispossession, Connolly shows that, ultimately, annuities (and their manipulation, as money could both be promised and withheld) bolstered U.S. federal power. As such, controlling annuities became instead the preferred method of engineering legal/extralegal dispossessions, forcing removal treaties, and compelling expulsions.

--Dan Ernst

Surrency and Burbank Prizes to Smiley

In this post, we'll note two prizes awarded at last month's annual meeting of the American Society for Legal History.  The Surrency Prize, awarded annually for the best article published in the Law and History Review, went to Will Smiley, “Rebellion, Sovereignty, and Islamic Law in the Ottoman Age of Revolutions,” Law and History Review 40:2 (2022): 229-259.  Here is the citation:

Will Smiley

Will Smiley’s “Rebellion, Sovereignty, and Islamic Law in the Ottoman Age of Revolutions” features deep research in multi-lingual, multi-national archives, erudite analysis, and compelling story-telling. This article connects the histories of the Ottoman Empire, Islamic law, and the global Age of Revolutions. Smiley examines how the Ottoman Sublime Porte in Istanbul used the Islamic law tradition to craft a law of rebellion that was useful to fighting foreign enemies and suppressing domestic dissenters. Islamic law both facilitated military power and constrained the actions of political administrators who were beholden to clerics, a Muslim public, and their own religious beliefs. Ultimately, the Porte forged a law of rebellion that justified retribution against those who resisted the Sultan’s authority, while simultaneously denying these rebels’ sovereignty. Smiley shows how this legal duality, positioning rebels as at once subject to a political power’s jurisdiction and belligerent outsiders, echoed across the Atlantic. Similar legal moves shaped Britain’s treatment of Greece, the Lieber Code, and the United States’ response to the confederacy. Smiley’s exploration of how the rule of law shaped empire, war, and rebellion holds both historical and contemporary insight.

Honorable Mention went to Alexandre Pelegrino, “From Slaves to I´ndios: Empire, Slavery, and Race (Maranha~o, Brazil, c.1740–90),” Law and History Review 40:4 (2022): 789-815.

The second prize we note here is the Jane Burbank Global Legal History Prize.  It also went to Will Smiley, “Rebellion, Sovereignty, and Islamic Law in the Ottoman Age of Revolutions,” Law and History Review 40:2 (2022): 229-259, with a citation:

Smiley’s elegant article assesses the global significance of the Ottoman government’s treatment of rebellious subjects as enemies at the turn of the nineteenth century. Although they lived within imperial territories and were claimed as subjects of the sultan, the Ottoman Porte began to define non-Muslim rebels as enemies under Islamic law. The move subjected rebels to extreme violence, including legal enslavement. Smiley assesses how this policy came about and places it in a global and comparative context. The result is a powerful argument about the imperial roots of an emerging international legal doctrine recognizing rebels as enemies but not bona fide belligerents.

Smiley recounts how Islamic jurisprudence informed the Ottoman Porte’s reactions to rebellions in Moldavid and Serbia. He labels the new classification of rebels as “dual sovereignty,” that is, placement outside the empire under Islamic law but inside it under international law. In Greece, the article shows, rebellious subjects were enslaved as enemies while the Ottomans also sought to block other empires from intervening inside Ottoman imperial territory. Other iterations of dual sovereignty, meanwhile, found adherents in Europe and the United States, also in connection with the legal status of rebels. During the US Civil War, the Lieber Code established the possibility of treating rebels as enemies without recognizing them as bona fide belligerents. Smiley pushes still further to reflect on the unexpected consequences of this legal approach. In the Ottoman empire, he suggests, the turn to Islamic law to justify enslavement of rebels placed unintended limits on state action.

As this summary shows, Smiley’s article contributes to the legal history of the Ottoman Empire, the history of Islamic law, and the history of international law. Committee members were impressed by the quality and range of the research, the subtleties of the analysis, and the clarity of the writing. The article models how to move artfully between local and global contexts.

Two Honorable Mentions were also announced.  One went to the runner-up for the Surrency Prize: Alexandre Pelegrino, “From Slaves to I´ndios: Empire, Slavery, and Race (Maranha~o, Brazil, c.1740–90),” Law and History Review 40:4 (2022): 789-815.  The other went to Juandrea Bates, “Unaccompanied Minors and Fraudulent Fathers: Civil Law in the Unmaking of Immigrant Family in Buenos Aires, 1869–1920,” Hispanic American Historical Review 102:1 (2022): 95-126.

Peter Gonville Stein Book Award to Chira

We complete the day's series of posts on book prizes awarded at the recently concluded annual meeting of the American Society for Legal History with the Peter Gonville Stein Book Award, which went to Adriana Chira, Patchwork Freedoms: Law, Slavery, and Race Beyond Cuba’s Plantations (Cambridge University Press, 2022).  Here is the citation:

Adriana Chira

Adriana Chira’s Patchwork Freedoms is a compelling account of the ways in which the free and semi-free black residents of eastern Cuba used law and custom to eke out their freedom over the course of the nineteenth century. Chira demonstrates how “day in and day out, enslaved people chipped away at enslavers’ authority locally, by negotiating the terms of their manumission and land access. They pulled one another out of plantation slavery gradually, yet consistently.” The committee was especially impressed by how Patchwork Freedoms integrates legal and social history by seamlessly weaving together legal and nonlegal sources to tell a story that is complex, nuanced, and locally grounded.

--Dan Ernst

Cromwell Book Prize to Morales

We continue our series of the honors and awards at the recent annual meeting of the American Society for Legal History with the Cromwell Book Prize, conferred by William Nelson Cromwell Foundation Book Prize with the advice of a committee of the ASLH.  This year's went to R. Isabela Morales, Happy Dreams of Liberty: An American Family in Slavery and Freedom (Oxford University Press, 2022).  Here is the citation:

R. Isabela Morales

This book is a dazzling achievement, especially as a first book. Happy Dreams of Liberty is a family saga, a tale of a father who set free his enslaved children upon his death and then sought to endow them with his considerable fortune — an act that shocked his white relatives. Morales renders the story of the Townsend family with the deft touch of a novelist, drawing the reader into a narrative that is cinematic in its execution. By reading deeply and creatively into the archival record left by an extensive battle over the execution of Samuel Townsend’s will, Morales is able to construct vivid and intimate portraits of the lives of numerous members of the family who lived both in freedom and in slavery.

Law is an integral part of Morales’s story, both circumscribing the possibilities for the Townsend children and allowing them to claim their freedom and some degree of financial stability. Morales is highly attentive to the local, showing how the practical consequences of freedom expanded and contracted depending on the residence of the various members of the Townsend family. At the center of Morales’s story is a lawyer, S.D. Cabaniss, who used his specialized knowledge to defend the Townsend will against legal attacks but also wielded his elevated status as a lawyer to intimidate the will’s beneficiaries. Morales demonstrates how, in ways both big and small, Cabaniss held sway over the lives of the Townsends. We found the book to be a model of legal microhistory, both well-argued and a pleasure to read.

--Dan Ernst

John Philip Reid Book Prize to Edwards

We continue our posts on honors and prizes awarded at the recent annual meeting of the American Society for Legal History with the John Philip Reid Book Prize, which was awarded to Laura F. Edwards, Only the Clothes on Her Back: Clothing and the Hidden History of Power in the Nineteenth-Century United States (Oxford University Press, 2022).  Here is the citation: 

Laura Edwards

Laura Edwards’ Only the Clothes on Her Back accomplishes the rare feat of making visible a world that has largely escaped the attention of historians. Drawing on extensive archival research, the book shows that in the period between the Revolution and the Civil War, marginalized people lacking formal, civil rights to property—including married women, free Blacks, and enslaved persons—were able to turn to courts to secure their ability to deploy textiles as an important form of currency, credit, and capital. Conceptually innovative and beautifully written, this is a pathbreaking study that challenges conventional understandings of rights, ownership, and power. 

--Dan Ernst

William Nelson Cromwell Foundation Fellows Announced

 As part of our continuing series of posts covering the awards and honors announced at the recently concluded annual meeting of the American Society for Legal History, here are the Society’s William Nelson Cromwell Foundation Fellows for 2023:

Siobahn Barco (Princeton University)
Haris Durani (Princeton University)
Brianne Felsher (University of California, Berkeley)
Henry Ishitani (Yale University)
Gabriel Levine (Princeton University/2nd Circuit Ct. of Appeals)
Sarah Meiners (Cornell University)
Robin Radner (Boston College)
Caleb Pennington (University of Iowa)
Kimberly White (University of Pennsylvania)

--Dan Ernst

Student Research Colloquium Fellows

As part of our continuing series of posts covering the awards and honors announced at the recently concluded annual meeting of the American Society for Legal History, here are the Society’s Student Research Colloquium Fellows for 2023:

Omar Abdel-Ghaffar, Harvard University, James Whitman/Yale Law School Fellow:
The Uncharitable Foundations of Mamluk Endowment
 
Siobhan Barco, Princeton University
Women, Power, and the Legal News, 1830-1930
 
Bonnie Cherry, University of California, Berkeley
“Little Kingdoms”: Leupp Isolation Center and Administrative Authority in Indian Country
 
Brianne Felsher, University of California, Berkeley, Herbert A. Johnson Fellow:
“A Legal Form of Marriage”: The Legality of Queer Families in the United States, 1830-1920
 
Anin Luo, Princeton University
Empathizing beyond Humanity: The 1970s Emergence of Personhood for Animals and the Environment
 
Robyn Morse, University of Virginia, John Wertheimer/Davidson College Fellow:
Enterprising Value: Labor Transitions and Legal Maneuvers During the Rise of the Oil Economy in Bahrain
 
Wallace Teska, Stanford University, William Novak/University of Michigan Law School Fellow:
Arbitrating Abolition: Law, Gender, and the End of Slavery in Côte d’Ivoire, 1900–1915
 
Daniel Vásquez Vega, University of Minnesota
When Statutes Come to Life: Industrial Accidents and the Judicial Transformation of Colombian Law (1897-1948)

--Dan Ernst

Wallace Johnson First Book Winners Announced

As part of our continuing series of posts covering the awards and honors announced at the recently concluded annual meeting of the American Society for Legal History, here are the scholars chosen for the Society's Wallace Johnson First Book Program:

Caleb Smith, Mt. Holyoke College
Been on the Shop Floor Too Long: Black Labor After the 1964 Civil Rights Act
 
Ellen Nye, Harvard University
Hierarchies of Capital: Monetary Governance in a Globalizing World
 
Larissa Kopytoff, University of South Florida
Contested Claims: Law, Islam, and Citizenship in French Colonial Senegal
 
Noah Rosenblum, New York University
Presidential Administration and Democracy, 1877-1939
 
Sanne Ravensbergen, University of Michigan
Mixed Courts and the Materials of Law in Colonial Indonesia

--Dan Ernst

Doing History After Dobbs

 In case you missed the panel at the recent ASLH, “The History of ‘History and Tradition’ in Dobbs v Jackson Women’s Health Organization,” here is a related symposium in the Yale Law Journal Forum including three of the four panelists, Doing History After Dobbs: Applications, Implications, and Critiques of Dobbs's Historical Methodology.

Lessons from Lawrence: How “History” Gave Us Dobbs—And How History Can Help Overrule It
Aaron Tang

Dobbs v. Jackson Women’s Health Organization is not the first time the Supreme Court has relied on dubious history to deny a constitutional right of profound importance. When the Court rejected what it described as the right of “homosexuals to engage in acts of consensual sodomy” in Bowers v. Hardwick, it did so based on disputed historical claims about criminal sodomy laws in early America. Indeed, when the Court later overruled Bowers in Lawrence v. Texas, it openly confessed that Bowers’s “historical premises are not without doubt and, at the very least, are overstated.”

This Essay explores three important lessons that reproductive-justice advocates can learn from Lawrence’s use of history to discredit Bowers. First, Lawrence shows that Dobbs is vulnerable to overruling because it, like Bowers, rests on faulty historical premises, including (but hardly limited to) Dobbs’s self-proclaimed “most important historical fact” that twenty-eight out of thirty-seven states banned abortion throughout pregnancy as of the Fourteenth Amendment’s enactment. Second, Lawrence suggests that these historical errors should undermine any claim Dobbs might make to stare decisis treatment. Finally, Lawrence reveals history’s limited utility in modern constitutional disputes. The problem with Dobbs’s dubious history, Lawrence teaches, is not that it represents the misapplication of a tractable test. The problem is that the history-and-tradition test Dobbs purports to apply is often deeply underdeterminate.

The History of History and Tradition: The Roots of Dobbs's Method (and Originalism) in the Defense of Segregation
Reva B. Siegel

In Dobbs v. Jackson Women’s Health Organization, the Roberts Court claimed authority to overturn Roe v. Wade by comparing itself to the Warren Court in Brown v. Board of Education overturning Plessy v. Ferguson. This Essay challenges the claim that Dobbs is like Brown by recovering history the Court omitted in Dobbs—history that ties Dobbs’s history-and-tradition method to the defense of segregation.

Dobbs interpreted the Constitution’s liberty guarantee by counting state laws criminalizing abortion at the time of the Fourteenth Amendment’s ratification. In so doing, Dobbs was employing modes of reasoning that were popularized by those who opposed Brown. They defended Plessy as properly interpreting the Constitution’s equality guarantee by counting states whose laws segregated education in 1868—the majority of which were states of the former Confederacy that were resisting Reconstruction. Brown repudiated this backward-facing method of interpreting the Amendment and called upon the nation to change its practices to conform to its constitutional ideals. In so doing, Brown recognized that application of the Constitution’s guarantees evolves in history—the approach in the Court’s substantive due process cases that Dobbs repudiated when it counted states that criminalized abortion in 1868 to justify reversing Roe.

This Essay traces the rise and spread of an interpretive method—counting state laws in 1868—that finds the Constitution’s meaning fixed in the deep past, tied to the expectations, intentions, and practices of the Constitution’s ratifiers. It shows how this method—and forms of originalism and traditionalism that limit the Fourteenth Amendment’s meaning to its ratifiers’ expectations, intentions, and practices—arose in opposition to methods of interpreting the Amendment that recognize that application of its guarantees evolves in history. These debates spread from conflict over segregation to substantive due process cases including Roe, Bowers, Casey, Glucksberg, Lawrence, and Obergefell, and they continue today, often as arguments about the “levels of generality” at which judges should interpret the Constitution’s requirements. In tracing the argument that state laws in 1868 are proxies for the expectations and intent of the Fourteenth Amendment’s ratifiers, this Essay shows how early forms of originalism and Dobbs’s history-and-tradition method emerged out of resistance to Brown and backlash to decisions of the Warren and Burger Courts. This history connects interpretive debates of the 1950s, the 1980s, and the 1990s to controversies about interpretive method that arise in the present day—as Americans argue about Dobbs’s legitimacy and ask how, if at all, Dobbs should guide federal and state courts in interpreting liberty and equality guarantees.

Examining interpretive methods in the political conflicts in which they grew helps us think critically about the justifications Dobbs offered for its method of interpreting the Fourteenth Amendment. Dobbs argued that its use of state-counting in 1868 to enforce the Fourteenth Amendment’s liberty guarantee provided an impersonal standard that prevented interpreters from reasoning from their values and so protected democracy in the states. The history this Essay examines refutes each of these claims, demonstrating how Dobbs’s method conceals dynamic forms of interpretation and enforces disempowering forms of democracy.

Counting states that segregated education (or banned abortion) in 1868 was not a neutral measure of the Constitution’s meaning, but instead perpetuated political inequalities of the past into the future. The democracy Dobbs supported was a thin majoritarianism, democracy without rights to protect the participation of those historically excluded from the democratic process. Race and gender conflicts over the abortion bans Dobbs authorized in Mississippi illustrate how the liberty and democracy Dobbs protects entrench political inequalities of 1868. Examining justifications for interpretive methods in political context makes vivid how in debates over abortion and gay rights, as in the debate over segregation, a backward-looking standard that appeared to fix the Constitution’s meaning in the past in fact vindicated the interpreters’ values and functioned as a veiled form of conservative living constitutionalism.

This Essay refutes the claim that Dobbs is like Brown on terms that contribute to contemporary debates in constitutional law and theory. Critically examining claims on the constitutional memory of Brown is a practice of fidelity to Brown as we commemorate its seventieth anniversary.

The History of Neutrality: Dobbs and the Social-Movement Politics of History and Tradition
Mary Ziegler

By excavating the history around the history-and-tradition test used in Dobbs v. Jackson Women’s Health Organization and the alternative it pushes to the side, this Essay reconsiders the meaning—and plausibility—of neutrality claims turning on the Dobbs Court’s use of history and tradition.

--Dan Ernst

Fijalkowski, "Law, Visual Culture, and the Show Trial "

Routledge has published Law, Visual Culture, and the Show Trial (2023) by Agata Fijalkowski (Leeds Beckett University, UK). A description from the press:

Addressing the relationship between law and the visual, this book examines the importance of photography in Central, East, and Southeast European show trials.

The dispensation of justice during communist rule in Albania, East Germany, and Poland was reliant on legal propaganda, making the visual a fundamental part of the legitimacy of the law. Analysing photographs of trials, this book examines how this message was conveyed to audiences watching and participating in the spectacle of show trials. The book traces how this use of the visual was exported from the Soviet Union and imposed upon its satellite states in the immediate aftermath of the Second World War. It shows how the legal actors and political authorities embraced new photographic technologies to advance their legal propaganda and legal photography. Drawing on contemporary theoretical work in the area, the book then challenges straightforward accounts of the relationship between law and the visual, critically engaging entrenched legal historical narratives, in relation to three different protagonists, to offer the possibility of reclaiming and rewriting past accounts. As its analysis demonstrates, the power of images can also be subversive; and, as such, the cases it addresses contribute to the discourse on visual epistemology and open onto contemporary questions about law and its inherent performativity.

This original and insightful engagement with the relationship between law and the visual will appeal to legal and cultural theorists, as well as those with more specific interests in Stalinism, and in Central, East, and Southeast European history.

More information is available here. An interview with the author is available here, at New Books Network.

-- Karen Tani

ASLH Names Radhika Singha an Honorary Fellow

We have the following news from the recent meeting of the American Society for Legal History:

The Honors Committee is pleased to announce the election of Professor Radhika Singha, recently retired from the Centre for Historical Studies at Jawaharlal Nehru University, New Delhi, as an Honorary Fellow of the American Society for Legal History. Professor Singha is a pioneering historian of law in South Asia, the author of innovative and inspiring studies of criminal law and imperial regulation, and a revered advisor to a generation of scholars who have turned South Asian legal history into a dynamic field of research. Her work transcends imperial, national, and regional boundaries, shifts the focus of legal studies away from familiar European and American contexts, and has widened the range of international legal history.

Professor Singha began her studies in history in India and earned an M.A. degree at Jawaharlal Nehru University (JNU). She then studied at Cambridge University, completing her Ph.D. in 1990. She returned to India where she taught at three universities: Delhi University, Aligarh Muslim University, and, from 2002 until her retirement in 2021, at JNU. At JNU, India’s leading university for the humanities and social sciences, Professor Singha advised and, it is fair to say, formed a new generation of scholars who have brought the history of South Asia into mainstreams of academic life in Europe, the Americas, and Asia. Professor Singha’s exceptional scholarship has been recognized by institutional appointments, invitations, and fellowships in the U.K., the USA, Ireland, Germany, Canada, New Zealand, Thailand, and Vietnam.

Professor Singha’s monograph, Crime and Criminal Justice in Colonial India, published by Oxford University Press in 1998, was based on Singha’s research into the entwined trajectories of colonial, Company, and regional law. This study remains a major reference point on the development of criminal law in India under Company rule and has influenced scholarly work in many fields, well beyond South Asia studies.

Singha’s other master monograph, The Coolie’s Great War: Indian Labour in a Global Conflict, 1914-21, also published by Oxford (2019), tells the story of the half-million Indian non-combatant workers who were drafted into the murderous campaigns of the British in World War One and its imperial follow-up. This brilliant, lively, and compelling work explores the regulation of military labor by British and local authorities, as well as the impact of the “coolies’” service on legal possibilities, life, and politics in post-war India. While many have written about or at least paid heed to the Indian soldiers who fought for Britain, no one had thought to recover the history of the half million so-called “non-combatants” who were brought into British service as military “followers.” Yet these were the people who cleaned up the multiple messes of the war, who carried stretchers, prepared food, and were at the beck and call of British officers. The topic itself was new, but so is Singha’s move of the war’s history out from its usual Eurocentric frame and into a global, trans-imperial context.

Singha’s attention to the colonial state’s impact on the lives of laborers, outcasts, and subordinated groups runs through her whole oeuvre, as does her vast knowledge of legal technologies in a colonial context. Her expertise on the British Code of Criminal Procedure underlies her studies of surveillance and policing, enabling her to highlight the discretionary element in codification. She has addressed questions of identification, and pursued the extensive efforts at regulating mobility inside and out of British colonies, as well as the intersection of military law with legal history. Singha never tells a single story: race, religion, gender, and status all matter for the endeavors, reforms, setbacks, cruelty and creativity of imperial rule and its challengers.

The nomination of Radhika Singha elicited an outpouring of admiration for her qualities as a teacher. In her position at JNU, the home of India’s national archives, Singha encouraged and supported the research of scholars who subsequently became professors in the United States, the U.K. and elsewhere in the now much wider world of legal history, of South Asia, and of empire studies.

It would be good if our citation could end on a high note, but we find ourselves in a time when the enormous achievements of Indian scholarship are being undermined by an orchestrated assault on academic freedom and quality. JNU, India’s premier university where Singha inspired so many students, is under attack, including physical violence against students, and prison sentences for both faculty and students. Professor Singha closes the acknowledgments in her recent monograph as follows: “I wish I could find words to express the full measure of my admiration for those students, teachers and staff of JNU who, in the face of sustained intimidation, defend liberal values and keep visible those being abandoned as citizens.” Let us join in recognizing Professor Singha, who has done so much to inspire commitment to these principles, with an honorary fellowship in the American Society for Legal History.

Other honorary fellows have been noted in separate posts.

-- Karen Tani

ASLH Names Sarah Barringer Gordon an Honorary Fellow

We have the following news from the recent meeting of the American Society for Legal History:

Sarah Barringer Gordon, the Arlin M. Adams Professor of Law and Professor of History at the University of Pennsylvania, is a renowned legal historian, known far and wide for her insights into law and religion in American history. Sally has left a lasting impression on the field through her scholarship, her generosity of spirit, her wise counsel, and her inspired leadership.

Sally’s prize-winning first book, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (2002) is, in the view of scholars in the field, “essential reading for anyone hoping to understand the history of the relationship between church and state.” It is “a powerful political and constitutional history,” making contributions in legal-economic, religious, cultural, and western history, and offering strikingly original contributions to what leaders in the field have come to call “the American Studies of American legal history.”

The Mormon Question manages to combine innovative methodological turns with a powerful demonstration that the Mormon encounter “was a central episode not only in the development of the law of church and state but also the history of federalism.”

Sally’s subsequent scholarship has left deep impressions. Her second book, The Spirit of the Law: Religious Voices and the Constitution in Modern America (2010), led the way, as one scholar has put it, “in the study of rights claims and constitutional rights discourses in modern American religious life.” Her article “The First Wall of Separation between Church and State” made the case that religious disestablishment was at once a landmark in the arrival of modern liberalism and a tool for the protection of human enslavement. Further articles with extraordinary range, from western massacres to religion, race, and the unexpected uses of corporate law in the early republic, have won distinguished prizes. Such work joins some three dozen articles, essays, book chapters and reviews to constitute a giant contribution to the literature.

For decades, Sally has been an unsurpassed contributor to the life of our field. She served as president of the Society and as co-editor of the Cambridge Press series, Studies in Legal History. She is a director of the William Nelson Cromwell Foundation and has served as member or chair of countless committees of the Society, including its all-important annual conference Program Committee.

She is widely known as “relentless in her work on behalf of the field.” Colleagues know that Sally "calls colleagues on weekends, emails people in the wee hours, and regularly buttonholes people in hallways, hotel lobbies, and airplanes to advance initiatives for the common good of legal historians. She does so with so much wit and charm that her interlocutors usually agree to help before they have quite understood what is involved."

In recent years alone, Sally launched the campaign to endow fellowships for the Hurst Sumer Institute, establishing permanent funding for the training of a new generation of scholars in legal history. Along with Ray Solomon, Sally established the Wallace Johnson First Book Program, which assembles workshops and offers early guidance to aspiring book authors.

In her role as editor, Sally has shepherded a generation of ground-breaking and prize-winning books into print. Sally is famous, in the words of one of her distinguished authors, as a “hands on” editor “from start to finish,” acting “as a second set” of eyes and ears and making sure authors see “the forest for the trees.”

And of course Sally is a “famously dynamic and inspiring teacher,” offering up a trademark mishmash of “charisma, style, and fun.” Visitors to her courses may find her sporting a pointy black hat to teach the Salem witch trials. Or they may find her describing with analytic precision the intertwined histories of racial exclusion and religious disestablishment.

In teaching and beyond, Sally has crafted an astonishing legacy in the study of law and history at Penn, making it one of the finest programs in the world. By the rough count of Sally’s colleagues, she has formally advised more than two dozen graduate students and informally mentored countless others. Sally’s mentorship involves, in as one of her closest colleagues puts it, “equal parts blunt criticism and effusive encouragement.” And always love.

At a recent festschrift in Sally’s honor former Society president Laura Kalman announced that “We all stand on Sally’s shoulders.” The Honors Committee agrees wholeheartedly. Professor Sarah Barringer Gordon has touched us with her love and her special genius in ways big and small. It is hard to imagine a better model for the Honorary Fellow role.

We note other honorary fellows in separate posts.

-- Karen Tani

ASLH Names Thomas Duve an Honorary Fellow

We have the following news, from the recent meeting of the American Society for Legal History:

The ASLH is delighted to honor Thomas Duve, Director at the Max Planck Institute for Legal History and Legal Theory, both as an erudite and seemingly indefatigable historian, and as an institution-builder who nurtures the next generation of scholarship on a transnational scale.

Thomas Duve made his mark in the study of canon law and the legal and theological thought of the 16th and 17th century School of Salamanca, Spain, which had traditionally been identified with a comparatively small group of early modern students and professors of theology. Duve and his colleagues have reframed the Salamanca School to see it as a global enterprise, not simply for its far-flung missionary activity, but for the way in which its members responded to and incorporated thought and practice from Asia and the Americas during the long period of colonization and missionization.

Duve has continued to reflect on what he refers to as "systems of normativity" emerging across the Iberian colonial era. He sees those systems not just as extensions of metropolitan conceptions, but as the result of dialogic processes. His goal is thus a "global history of knowledge production" that spans legal history, canon law, and social history, and incorporates the voices of enslaved and indigenous men and women as well as those of Europeans. In many journal articles and edited volumes he has explicated, demonstrated, and expanded up this approach.

His own background is itself transnational. He initially studied law and philosophy in Heidelberg, Buenos Aires, and Munich, and taught legal history for several years at the Faculty of Canon Law at the Catholic University in Buenos Aires, before becoming Professor of Comparative Legal History at the Law School of the Goethe-University in Frankfurt, and Director at the Max-Planck-Institute. Under his influence, the Max Planck has transformed itself across the last decades from an institution focused on Europe into a global intellectual powerhouse that trains and nurtures scholars from different traditions, working on different regions, and heightens the visibility of their scholarship.

Duve's scholarly research demonstrates the method he advocates. For example, he has shown that the classic European category of miserabiles personae-- who could benefit from certain specific ecclesiastical legal protections -- had to be "localized" anew in colonial Latin America. The Latin words in treatises could not alone answer the question of who might properly be thought of as occupying that category in a society marked by the presence of a large indigenous population as well as enslaved Africans held as property. In turn, the actions of those indigenous and enslaved persons who might seek such protection necessarily reshaped the norm itself.

Duve emphasizes that transmission is not a matter of the diffusion of norms and codes outward from the European center, but a continuous process in which both theory and practice are necessarily bent by local conditions and expectations. So to understand the processes of localization of law-- which may vary from parish to parish as well as region to region -- requires consulting all kinds of sources, including those that bounce the impact of localization back to the initial point of departure.

Duve argues that each instance of practice can then shape theory in the next stage. Indigenous ideas, initiatives, and conditions thus shape the very law itself. Books in hand and practice on the ground appear in continuous, albeit highly asymmetrical, dialogue. What a given normative concept can actually do in a new setting, circles back to shape how it is expressed.

This approach has proven to be generative for cross-national research teams, such as a recent project focused on legal pluralism and normativity in the Portuguese empire. Here we see the intersection between Duve's scholarship and his institutional commitments. The core of his interpretive approach rests on dialogue among far-flung peoples, and embodies a picture of legal history as a global discipline. He has carried this over into the re-shaping of the mandate of the Max Planck Institute, seeking out, identifying, and nurturing scholars from Latin America and Africa as well as the United States and Europe, and expanding his own teaching as a visiting professor in Asia.

Thomas Duve's peers marvel at his intellectual brilliance, and those he has mentored thoroughly perceive his generosity. We are delighted to recognize and honor his scholarship and his impact on our profession, naming him an Honorary Fellow of the American Society for Legal History.

We will note this year's other honorary fellows in separate posts.

-- Karen Tani

Weekend Roundup

• "The [European Research Council]-funded research project Agency in Law (LEGACY) invites applications for the position of a postdoctoral researcher in legal and/or intellectual history for a three-year fixed term period, starting in September 2024 by the latest" (ESCLH). 
  

• Thomas J. McSweeney has reviewed Lorren Eldridge's Law and the Medieval Village Community: Reinvigorating Historical Jurisprudence (JOTWELL).
  

• We noted Daniel Friedman's paper on the Rockefeller Foundation and the Model Penal Code. Here is a blog post on the article on MCLR+ with links to documents at the Rockefeller Archive Center.
  

• 
  Colin Gordon, University of Iowa, will discuss his forthcoming book, Patchwork Apartheid: Private Restriction, Racial Segregation, and Urban Inequality, at noon Monday, November 6, at the Bryan Cave Moot Courtroom in Anheuser-Busch Hall at Washington University St. Louis.

• "Ned Blackhawk and Brenda Child join for a conversation on Blackhawk’s national bestseller, The Rediscovery of America: Native Peoples and the Unmaking of U.S. History--a sweeping retelling of American history"--at the National Constitution Center (NCC).
  

• Gerard Magliocca testified on whether "the 14th Amendment’s 'insurrectionist ban' can be used to prevent former President Donald Trump from appearing on Colorado’s presidential election ballots" (C-SPAN; Colorado Newsline).  
  

• Alison LaCroix, University of Chicago Law School, discusses her participation on the Presidential Commission on the Supreme Court of the United States.
  

• The Irish Legal History Society interviews the winners of its undergraduate and postgraduate essay prizes, Maitiú Breathnach and Emma Quinn. 
  

• From "Made by History" (now affiliated with TIME): Ansley Quiros (University of North Alabama) on "The Forgotten School Integration Story that Challenges What We Think We Know."
  

• What the Black Intellectual Tradition Can Teach Us About Democracy, with Jamelle Bouie and Melvin Rogers at the National Constitution Center, Tuesday, November 14, at 7:00 pm.  Register.
  

• The University of Kansas's press release on that article by Alex Platt on Baldwin Bane and the origins of the disclosure regime in federal securities law.  
  

• More on that posthumous admission of Edward Garrison Draper to the Maryland State Bar (JDJournal).

• From In Custodia Legis: "Witch Trials and the Haunting of Jean Bodin."

• Courtesy of Roanoke College, here is a shot of the set of Todd Peppers's play, "Holmes," performed on October 30, at Arena Stage in Washington, DC, with help from the Supreme Court Historical Society. 
  

• Telegraph Torts: The Lost Lineage of the Public Service Corporation, by Evelyn Atkinson, Tulane Law, is now out in the Michigan Law Review.
  

• The Georgetown Law Library kvells over its oldest manuscript, the “Hempstead and Great Sampford Land Grant” of 1280.
  

• The November catalogue from Lawbook Exchange is here.
  

• ICYMI: Mapping homicides in medieval England (NYT). Edinburgh "mum" and Ph.D. candidate in legal history parlays knowledge of Salem Witchcraft Trials into a spot on a BBC quiz show (edinburghlive).  Kansas City’s Black Archives preserves police killing documents so people will know “the real story” (KCUR). That litigation over the leadership of the Texas State Historical Association--and Texas history (AHA Perspectives, pp. 8-10).
  

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

van den Berge on Roman Dictatorship

Lukas van den Berge, Utrecht University Faculty of Law, has posted Roman Dictatorship: Emergency Government and the Limits of Legality, which is forthcoming in Law and Method:

Doctrinal approaches to Roman law are currently often supplemented by contextual legal-historical scholarship that aims to expose Roman law’s connections with its socio-political, religious and broader intellectual environment. This article draws attention to the relevance of such contextual research for modern legal problems. An analysis of the Roman dictatorship and its reception history in legal and constitutional scholarship serves as a case in point. Contrary to common belief, the far-reaching powers of the Roman dictator – acting to save the Roman Republic in times of great peril – were controlled by informal rather than formal legal restraints. A corrected understanding of the Roman dictatorship is arguably not only important for an appropriate assessment of the Roman constitution itself, but also for current debates on the limits of legality in times of emergency. 

--Dan Ernst

Cracow Studies of Constitutional and Legal History

We're grateful to Maksymilian Del Mar, Queen Mary University of London, for drawing our attention to the online repository of papers, Cracow Studies of Constitutional and Legal History?  Those of us who lack Polish might still be interested in papers posted there in English, including James Gordley's Betrayal of the French Civil Code: A Tragedy in Three Acts and Professor Del Mar’s Animating the Past: History-Making, Memory-Making, Law-Making:

This paper examines certain history-making and memory-making practices that allow us to see how the past may be animated. These practices are: first, the Ancient Greek sophistic arts, as exemplified by Gorgias’s Encomium of Helen, and as revived, in dialogue form, in Renaissance humanism; and second, Ancient Greek, Ancient Roman, and medieval memory arts, with particular attention to the composite generative imagery of those arts. Animating the past – as these practices of history-making and memory-making do – is of great epistemic and political value to communities: it enables acts of argument and judgement, and, more generally, it is vital for vibrant democracies. The paper signals, albeit only briefly, how these practices are also intertwined with legal history, and in particular the history of legal reasoning, suggesting some ways forward, in future work, for investigating the entangled histories of history-making, memory-making, and law-making.

--Dan Ernst

Epps and Green on Affirmative Action at YLS

JoAnne Epps and Craig Green, Temple University James E. Beasley School of Law, have posted Black Lawyers Matter: An Oral History of Race-Inclusive Admissions at Yale:

Almost no one knows that Yale had the first affirmative action program of any elite law school in the country. In 1968, Dean Louis Pollak endured fierce criticism from alumni and faculty for deciding to admit twelve Black students, larger than any prior group in the law school’s history. All of those students would eventually become judges, professors, civil rights lawyers, government leaders, in-house counsel, or successful private attorneys.

We sought to speak with every Black Yale law student from the entering classes of 1963 to 1978. Using techniques of oral history, we interviewed forty-seven people across twelve states, including at least one person from each class year. This Article merges that specific evidence with new interpretations of the “Affirmative Action Era” across the United States to highlight Black actors who are intrinsically important to the history of legal education, the legal profession, and society at large. Any accurate account of U.S. legal history must include Black voices and experiences.

This Article also applies historical materials and interpretations to current legal debates, undermining stereotypes and generalizations about affirmative action that have been endorsed by Justice Clarence Thomas and other critics. Particular histories of Yale students illustrate the nationwide risks of colorblind constitutionalism, and this Article uses the long national history of affirmative action to develop doctrinal solutions for the future.

--Dan Ernst

Lash on Section 3

Kurt Lash, University of Richmond School of Law, weighs in on the constitutional controversy of the moment with The Meaning and Ambiguity of Section Three of the Fourteenth Amendment:

Thaddeus Stevens (LC)

Section Three of the Fourteenth Amendment disqualified anyone from serving in the House or Senate, or as a presidential elector, if they had betrayed their oath of fealty to United States and joined the Confederacy during the American Civil War. Whether Section Three accomplishes anything more remains unclear as a matter of history and ambiguous as a matter of constitutional text. Section Three does not expressly (1) apply to future rebellions or insurrections, (2) apply to persons elected as President of the United States, (3) apply to persons seeking to qualify as a candidate for the Presidency, or (4) indicate whether the enforcement of Section Three requires the passage of enabling legislation.

Prior drafts of Section Three included versions that expressly named the office of the President of the United States, expressly banned presidential candidates from qualifying as a candidate, and expressly applied to both past and future rebellions. Congress omitted all of this language from the final version of Section Three. This final language led the best lawyer in the House to assume that the text did not include the office of the President. Although a single member disagreed, their exchange went unreported in the press, leaving open the possibility that less sophisticated members of the public might also read the text as excluding the office of the President. The exclusion would not have been "absurd" since the Electors Clause ensured that only loyal electors could vote for the President.

Key framers and ratifiers also expressly insisted that Section Three would not be self-executing. As Thaddeus Stevens explained, Section Three “will not execute itself,” and at least some participants in the ratifying assemblies expressly agreed (no one claimed otherwise). As far as future rebellions were concerned, the historical record reveals both framers and ratifiers dividing over the text’s possible application to future insurrections. In sum, the historical record supports Lyman Trumbull’s explanation of the original understanding and scope of Section Three: The provision was “intended to put some sort of stigma, some sort of odium upon the leaders of this rebellion, and no other way is left to do it but by some provision of this kind.” Whether the public understood the ambiguous text as allowing for anything more remains historically unclear.

--Dan Ernst

Rabban on Jhering and American Legal Thought

David Rabban, University of Texas at Austin School of Law, has published "Jhering’s Influence on American Legal Thought” in the collection, Jhering Global: Internationales Symposium Zum 200. Geburtstag Rudolf Von Jherings (1818-1892), which was the product of this conference.  From Professor Rabban's introduction:

Rudolph von Jhering has influenced American legal thought since the late nineteenth century, though the nature of his influence has varied over time. In this essay, I proceed chronologically. I begin with the late nineteenth-century American legal scholars who admired Jhering as part of the great tradition of German legal scholarship they viewed as a model for their own. Like American scholars in numerous disciplines during this period, many of them had studied as postgraduates in Germany. Jhering himself declared in an 1881 letter to his German colleague, Oskar von Bülow: “my writings are widely read even in the United States, and a review of my book, The Ends of Law, is the most brilliant which has ever appeared about any of my works.”1 I then address Jhering’s substantial influence on Oliver Wendell Holmes, Jr. and Roscoe Pound, two of the most important figures in the history of American legal thought. I focus on Holmes’s famous book, The Common Law, published in 1881, and Pound’s development of “sociological jurisprudence” in the decade before World War I. Jhering also influenced both adherents and critics of the “legal realism” that emerged in the 1920s and 1930s, which many perceive as an extension of sociological jurisprudence. Scholars in the United States often applied to American law their understanding of Jhering’s position that the prevailing overemphasis on deductive logic and abstract legal theory should be replaced by a social theory of law consciously designed to promote the present public interest. They relied on Jhering as well in analyzing technical legal doctrine, as I point out in discussing classic articles on contract law by Lon Fuller in the 1930s and Friedrich Kessler in the 1960s. Kessler emigrated to the United States as a refugee from Nazi Germany in the 1930s after receiving his legal education in Germany.

–Dan Ernst

Blocher and Siegel on "Gun Rights and Domestic Violence in Rahimi"

Over at Balkinization, Joseph Blocher (Duke Law School) and Reva Siegel (Yale Law School) have a post on "Gun Rights and Domestic Violence in Rahimi—Whose Traditions Does the Second Amendment Protect?" Here's an excerpt:

Since 1994, persons subjected by courts to qualifying domestic violence restraining orders have been prohibited from possessing a firearm under 18 U.S.C. § 922 (g)(8). In United States v. Rahimi, the Fifth Circuit declared that prohibition unconstitutional under the Second Amendment.

. . . 

We show that the domestic violence prohibitor is constitutional under Bruen’s historical test, and explain how the Fifth Circuit and other federal courts are manipulating levels of generality in applying the test so that it can be used to strike down nearly any modern gun law. Rahimi therefore provides a critical occasion for the Court to uphold the domestic violence prohibitor and to reject the asymmetric application of Bruen’s analogical framework that the Fifth Circuit employed in justifying the law’s invalidation.

The post links to their article "Guided By History: Protecting the Public Sphere From Weapons Threats Under Bruen," which appears in Volume 98 of the New York University Law Review (2023). Here's the abstract:

Since the Founding era, governments have banned guns in places where weapons threaten activities of public life. The Supreme Court reaffirmed this tradition of “sensitive places” regulation in District of Columbia v. Heller, and locational restrictions on weapons have become a central Second Amendment battleground in the aftermath of New York State Rifle & Pistol Association v. Bruen. Liberals have criticized Bruen for requiring public safety laws to mimic founding practice, while conservatives have criticized it for licensing regulatory change not within the original understanding. In this Article we argue that Bruen’s analogical method looks to the past to guide change in weapons regulation, not to foreclose change. We illustrate the kinds of sensitive place regulations Bruen authorizes with examples spanning several centuries and close by demonstrating—contrary to recent court decisions—that a 1994 federal law prohibiting gun possession by persons subject to a domestic violence restraining order is constitutional under Bruen.

Where some imagine the past as a land of all guns and no laws, this Article shows how weapons regulation of the past can guide public safety regulation of the present. Governments traditionally have protected activities against weapons threats in sites of governance and education: places where bonds of democratic community are formed and reproduced. We argue that Bruen’s historical-analogical method allows government to protect against weapons threats in new settings—including those of commerce and transportation—so long as these locational restrictions respect historical tradition both in terms of “why” and “how” they burden the right to keep and bear arms.

At the heart of this Article is a simple claim: That Bruen’s analogical method enables public safety laws to evolve in step with the gun-related harms they address. Bruen does not require the asymmetrical and selective approach to constitutional change practiced by some in its name. Just as Bruen extends the right of self-defense to weaponry of the twenty-first century, it also recognizes democracy’s competence to protect against weapons threats of the twenty-first century.

We apply these principles to demonstrate the constitutionality of the federal law prohibiting gun possession by people subject to a domestic violence restraining order, which the Supreme Court is currently considering in United States v. Rahimi. 

The full article is available here.

-- Karen Tani