Kersch's Constructing Civil Liberties

Karen's link (below) to Ken Kersch's review of Paul Kens's new book gives me an excuse to plug Kersch's book, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law, a wonderful book that hasn't received nearly the attention I think it deserves. Here's my review, originally published in the American Historical Review.

This is a relentlessly interesting book, one that can’t help but change the way the reader understands twentieth century American constitutional development. As Kersch persuasively argues, for much of the late twentieth century, American constitutional history was dominated by a whiggish narrative in which progressive forces consistently supportive of civil rights and civil liberties triumphed over the dark forces of reaction. This whiggish narrative, however, is full of holes.

For example, progressives of the early twentieth century fought mightily against privacy rights protected by the fourth and fifth amendments, in the name of the right of publicity. More specifically, the statebuilding project supported by progressives required that American businesses be subjected to intrusive and unprecedented inspection by regulatory and other legal authorities. Even future Supreme Court Justice Louis Brandeis’s famous 1890 article supporting a constitutional “right to privacy”—later cited as the progenitor of modern “right to privacy” cases such as Griswold v. Connecticut—actually did not advocate a right to privacy that modern civil libertarians would even begin to recognize. Quite to the contrary, the article advocated recognition of a tort for invasion of privacy as a means of censoring even rather tepid tabloid journalism. Only after progressives had soundly defeated the “old” right to privacy in the economic sphere and established the modern bureaucratic state did they reimagine the right to privacy in terms congenial to modern liberalism, as an island of personal autonomy in a sea of statism. This victory also allowed them to revive the Fourth and Fifth Amendments in the service of protecting street criminals.

The whiggish narrative also asserts that a defining characteristic of American progressivism has been solicitude for the rights of oppressed minorities, especially African Americans. In fact, however, before the New Deal era most progressives were at best indifferent to African Americans’ plight. Indeed, some were openly hostile to African American, and launched such progressive schemes as the wave of residential segregation laws that swept through the United States in the 1910s. These laws were invalidated by a unanimous decision of the “conservative” Supreme Court in Buchanan v. Warley in 1917, to a chorus of criticism by progressive legal scholars.

Organized labor, not civil rights, was the favored cause of progressives in the early twentieth century, and labor unions, especially AFL and railroad unions, were themselves hostile to African Americans. African Americans, in turn, for the most part fiercely opposed labor unionism. In alliance with the businesses that often provided them with work over white workers’ objections, African Americans supported such “reactionary” policies as labor injunctions, strikebreaking, and the legality of yellow dog contracts. Kens argues that progressives only embraced the cause of civil rights when African Americans dropped their prior attachment to pre-New Deal individualistic conceptions of rights, and, modeling themselves on the successful model of organized labor, organized themselves as a constitutional class entitled to group rights in a statist legal and economic superstructure.

Finally, progressive conceptions of appropriate education policy were for the most part driven far more by a vision of imposing a centralized, statist school system on the American people than on any principled conception of civil liberties and separation of church and state. Progressive intellectuals strongly opposed the Meyer, Pierce, and Tokushige Supreme Court opinions of the 1920s, which protected local school board prerogatives and private schooling against progressive demands for homogenization and centralization of education. Progressives, in fact, were overtly hostile to the very existence of Catholic parochial schools; the constitutionality of banning such schools was at the heart of the Pierce case. By the 1960s, progressives and their allies on the scholarly community reinterpreted the quintessentially conservative Supreme Court cases—which their roots in the “reactionary” Lochner v. New York tradition—as civil libertarian cases protecting individual autonomy from conservative religious forces (see Griswold v. Connecticut and Roe v. Wade). However, progressive hostility to traditional Catholicism continued, as the history of both of these cases makes clear.

Similarly, after the New Deal, the overtly statist progressive attempt to in the 1920s to outlaw Catholic schools morphed into an attempt to ensure that government aid to Catholic schools was beyond the constitutional pale. The “civil libertarian” doctrine promulgated to accomplish this goal was the “separation of church and state.” Courts initially used this doctrine primarily to suppress government assistance to Catholic schools and Catholic-dominated “release time” programs. However, as atheists and liberal Jews became increasingly influential in separationist organizations, the attack on Catholic education morphed into a broader war against expressions of Christian religious sentiment in the public schools, culminating in the Lemon v. Kurtzman decision in 1971. Not surprisingly, whiggish narratives neglect the anti-Catholic sentiment that initially spurred these constitutional developments.

Kersch puts all of these examples into the broad framework of American political and constitutional development. Most historians, law professors, and political scientists who write about constitutional history likely think of themselves as independent liberal, perhaps even radical, critics of their government. Kersch, however, will have none of it. He accuses the scholars who spun and sustained the fanciful but entirely mainstream whiggish narrative of the development of “civil rights and civil liberties” of “being heavily implicated in the political project of justifying, institutionalizing and ... defending the New Deal constitutional regime.” Rather than serving as the incisive and independent critics of their own imagination, the academic establishment has served as an implicit fourth (or fifth) branch of government, rewriting American history to retroactively justify the revolutionary changes to the American conception of rights, liberties, and the proper role of government that the New Deal precipitated and institutionalized.

Ultimately, this short review cannot do justice to the brilliance of Kersch’s insights, or the breadth of his research. Suffice to say that Kersch is fully up to the challenge of explaining and defending a revisionist thesis of tremendous magnitude. Constructing Civil Liberties is simply the most provocative and enlightening book on constitutional history that I have ever read.

[David Bernstein]

The Smith Act Prosecutions

Apropos of Scott Martelle, The Fear Within: Spies, Commies, and American Democracy on Trial, recently mentioned on this blog, I discussed the Smith Act prosecutions a few years back in the Northwestern University Law Review. I concluded that ideally the government should have prosecuted the defendants for conspiracy to commit espionage, but that the Smith Act prosecutions may have been a reasonable second-best alternative under the circumstances:

Thus, the government was faced with several unattractive options: prosecute Communists for espionage and reveal the Venona decoding, destroying an extremely valuable source of information on the Soviets; spend huge resources monitoring the CPUSA in a potentially fruitless attempt to disrupt its espionage activities; ignore the CPUSA's espionage and continue to allow American secrets to leak to the country's greatest enemy; or stretch the boundaries of the First Amendment and prosecute CPUSA leaders under the Smith Act, as the government had previously done to Nazi and fascist leaders [prosecutions that are considered far less noteworthy by historians, and that were supported by CPUSA leaders!]. The government did not obviously choose the worst option.

Of course, I spent several pages elaborating on these arguments, so if you're interested, read the whole thing.

Sutherland Memorial Lecture in Legal History

[We have the following from our friends at Iowa Law.] The Program in Law and History at the University of Iowa is pleased to make available the podcast of the 2011 Donald W. Sutherland Lecture in Legal History. The Sutherland Lecture, given annually, honors the memory of Donald Sutherland, a distinguished historian of English law who taught at the University of Iowa for nearly thirty years.

The 2011 Sutherland Lecture was given by Thomas Gallanis, the N. William Hines Chair in Law at the University of Iowa, on the topic "The Evolution of the Common Law." The podcast is available here.

Raustiala on Empire and Extraterritoriality in 20th Century America

Kal Raustiala, UCLA Law, has posted Empire and Extraterritoriality in 20th Century America, which is forthcoming in Southwestern Law Review. Here is the abstract:

Powerful nations have long sought empires. The United States is no exception, though its imperial experience is distinctive. In this brief essay I examine the American approach to empire in the 20th century. In the early years of the century the U.S. experienced a brief burst of traditional empire-building. By the Second World War, however, American leaders for the most part foreswore traditional empire, even as the nation became a superpower with global reach and ambition. They instead pioneered a new form of political dominance, which produced many of the effects of empire in a different form. This new form of empire had several important features, but the key was that it was essentially extraterritorial in nature.

Traditional empires controlled territory directly or indirectly; that control was reflected in maps that showed, for example, the territorial holdings of the British Empire in red. The postwar American empire, by contrast, projected national power outward without controlling foreign territory directly. It was predicated not on territorial control but on extraterritorial power and presence. Through military bases sited on the territories of other states, the extension of domestic statutes overseas, and a web of multilateral institutions that embedded and extended American power while creating a favorable environment for American firms, the US achieved many of the ends of empire without the form. The unusual structure of postwar order the United States created and led reflected the nation’s newfound superpower status after 1945. It was, in many respects, an “empire by invitation,” since it was welcomed by many states around the world. But it was also consistent with a wide range of constitutional concerns that had arisen in the Theodore Roosevelt and Taft administrations, largely stemming from the acquisition of the Philippine Islands from Spain. An extraterritorial empire proved more comfortable fit with our constitutional framework, and with our political interests, than traditional territorial empire.

Image credit.

Two Symposia on Lindseth on Europe and the Nation-State

On Wednesday, May 11, the Robert Schuman Centre for Advance Studies will hold a symposium at the European University Institute on Power and Legitimacy: Reconciling Europe and the Nation-State (Oxford University Press, 2010), by Peter Lindseth, Connecticut Law. Details here.

If you can't make it to Italy, check out the on-line symposium held recently at Opinio Juris:

Intro (Spiro)
Opening (Lindseth)
Comment 1 (Nicola)
Comment 2 (Bignami)
Comment 3 (Anderson)
Reply (Lindseth)

On a Certain Type of Historical Error

People often say that it’s easier to think that newspaper stories are generally accurate until you read a few stories about something about which you have personal knowledge. Sometimes, I feel the same way about history.

A case in point: In 1923, the U.S. Supreme Court invalidated a women-only minimum wage law. The Court noted that the law infringed on liberty of contract, and therefore was presumptively unconstitutional.

Justice George Sutherland, writing for the Court, proceeded to distinguish the case at bar from previous decisions upholding women-only maximum hours laws:

In the Muller case, the validity of an Oregon statute, forbidding the employment of any female in certain industries more than ten hours during anyone day was upheld. The decision proceeded upon the theory that the difference between the sexes may justify a different rule respecting hours of labor in the case of women than in the case of men. It is pointed out that these consist in differences of physical structure, especially in respect of the maternal functions, and also in the fact that, historically, woman has always been dependent upon man, who has established his control by superior physical strength. The cases of Riley, Miller, and Bosley follow in this respect the Muller case. But the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller case (p. 421) has continued "with diminishing intensity." In view of the great -- not to say revolutionary -- changes which have taken place since that utterance, in the contractual, political and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point. In this aspect of the matter, while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances. To do so would be to ignore all the implications to be drawn from the present day trend of legislation, as well as that of common thought and usage, by which woman is accorded emancipation from the old doctrine that she must be given special protection or be subjected to special restraint in her contractual and civil relationships.

This is the most equalitarian rhetoric one will find in a Supreme Court about with regard to women for almost fifty years. Yet historians, even feminist historians hostile to protective laws for women, give Sutherland no credit. Various historians have accused Sutherland of “male bias and corporate favoritism,” of being “disingenuous,” of making “a farce of women’s equality,” and so on. In short, perhaps relying on Sutherland’s reputation as a “conservative,” historians have simply assumed that Sutherland was insincere.

Yet, it wouldn’t have taken any of these historians much effort to discover that Sutherland was a longstanding women’s rights advocate. He introduced the Nineteenth Amendment into the Senate when he was a Senator for Utah, campaigned for the passage of that amendment, helped draft the Equal Rights Amendment, and was a friend and adviser of Alice Paul of the National Woman’s Party.

One obvious lesson from all this is not to anachronistically assign ideological positions to people based on current ideological alignments. Sutherland may have been “conservative” on economic issues, but in 1923 there was no strong correlation between one’s views on women’s rights (or civil rights and civil liberties more generally) and one’s views on economic policy. Indeed, mainstream views in Progressive legal circles regarding women's "place" would be considered downright reactionary these days.

But there is also a broader issue of making conclusory statements about a historical figure without actually doing any research about that figure. Sutherland’s views on sex equality were not the focus of any of the erring historians’ work, but if they were not going to bother looking into those views, why raise the issue to begin with?

For those interested in the topic of protective laws for women and the law, I devote a chapter of Rehabilitating Lochner to it.

Founding Gardeners, Noah Webster, Anticommunism on Trial, and more in the book pages

FOUNDING GARDENERS: The Revolutionary Generation, Nature, and the Shaping of the American Nation by Andrea Wulf is an "illuminating and engrossing new book," Paula Dietz writes in the New York Times.  Wulf shows that "the first four presidents were passionate botanists whose country seats became laboratories for their grander vision of an independent agrarian republic in the New World."  The book is "an ecological and historical narrative, revisionist in the best sense, combining the suspense of war and political debate with an intimate view of private lives devoted to the natural sciences and reinforced by long-distance friendships."

Wulf begins with Benjamin Franklin, in London on behalf of the Pennsylvania Assembly at the time of the much reviled Stamp Act. Even as catastrophe loomed, he was urgently sending seeds back home to his wife, not just for the enhancement of his own garden but to be distributed to other Philadelphia plantsmen. Agricultural self-sufficiency was, he believed, vital for the increasingly rebellious colonies.

Read the rest here.


The Forgotten Founding Father: Noah Webster's Obsession and the Creation of an American Culture by  Joshua Kendall is a "smart new biography" writes Nicholas A. Basbanes in the Los Angeles Times.

Born in West Hartford, Conn., the son of a poor farmer, Webster was able to attend Yale College through great family sacrifice. A teacher and lecturer early in his career, he found his true calling with words. "I wish to enjoy life, but books and writing will ever be my principal pleasure," he confided to Washington....

But Webster's accomplishments went well beyond the making of books. He was variously a lawyer, patriot, amateur epidemiologist, statistician, pamphleteer, co-founder of Amherst College, and at Washington's urging, editor of New York City's first daily newspaper, the American Minerva. As Washington's confidant at the Constitutional Convention, he had a voice in the proceedings, including his strong advocacy of several key principles, the need for "a supreme power at the head of the union" most notable among them. But his most enduring triumph was his relentless mission to get Americans to actually think of themselves as Americans.

Read the rest here.

The Fear Within: Spies, Commies, and American Democracy on Trial by Scott Martelle is lauded by Wendy Smith in the Los Angeles Times:

In his cogent, nuanced account of the 1949 prosecution of American communists under the Smith Act, former Los Angeles Times staff writer Scott Martelle sees this case fitting into a troubling pattern. From the Alien and Sedition Acts of 1798 to the Patriot Act of 2001, he writes, "The United States has a habit of convulsing with fear during times of stress, and in the process undercutting the very freedoms of speech, political belief and religious expression that Americans profess to hold dear."

It is difficult to tell from the review, however, whether this book adds anything to the extensive pre-existing literature.  If you've read it and you can speak to that, please post a comment.  The full review is here.


Also reviewed this week:

Francis Fukuyama reviews THE CONSTITUTION OF LIBERTY: The Definitive Edition (The Collected Works of F. A. Hayek, Volume XVII) by F. A. Hayek, edited by Ronald Hamowy, in the New York Times.

THE IMMORTALIZATION COMMISSION: Science and the Strange Quest to Cheat Death by John Gray, in the New York Times.

Jerusalem, Jerusalem: How the Ancient City Ignited Our Modern World by James Carroll in The New Republic/The Book.

Constitutional History?

What is it we study or teach when we study and teach constitutional history?

At the very least, it strikes me that whatever it is, it is not the same as legal history. But that is mostly because I’m not sure what legal history is. I can imagine teaching a course on the legal history of women, or on the history of criminal law, or on the history of the law of labor. But legal history, more generally, strikes me as simply a country’s history, taught using legal highlights (“in this period, dominant legal issues, at least in the South, related to slavery; fifty years later, corporations were a major focus of the courts”). Not that there’s anything wrong with that, I teach an American Legal History course myself with some regularity. But it is really a series of week or two week long mini courses on particular issues in law, strung together chronologically, not a subject on its own.

Constitutional history, in contrast, has a focus—the constitution of a particular country. But if it is focused on a particularly, clearly identifiable thing, the question of how that thing should be engaged remains.

Should a course on US constitutional history be a study of Supreme Court greatest hits? That’s what my undergraduates want to study, partly because they think it will give them a leg up on law school and partly because that’s what many of them think of when they think of law. But that’s also usually what my law students think it is (and want it to be), sometimes because it is a way of coming to grips with doctrines that they only sort of learned in con law class, sometimes because it is a way of reading cases on an area of law they did not cover in a class, and often because reading cases is what they expect to do and feel comfortable doing.

I’m sympathetic to all those perspectives, even though (perhaps especially because) I know almost none of my students will have anything to do with constitutional law if they practice law. At some level, to make the point another way, I not only accept, but embrace the idea that what I do is teach a high end form of civics. Somebody needs to, after all, and what better way to do it then through history, where we see the context of decisions (and the different points of view that led to the dispute) and can explore the impact of the cases on the parties or on others? And if, along the way, students learn how to find cases and read decisions, or we can demystify the law just a little bit, that doesn’t strike me as bad either. Anything that adds complexity or nuance (or both) to popular constitutional discourse strikes me as a good thing.

But that’s a history of constitutional law, and I’m not sure that’s all that constitutional history should entail. So I nudge my US constitutional history courses outside the courts; we read some documents and secondary sources that consider how and why particular constitutional debates sometimes were articulated or struggled over in the streets or legislatures, rather than the court system. Doing that reinforces the idea that, even when it is a constitution we are expounding, the law on the books is often not the same as law in action (or practice).

And at the same time, it shifts the focus of our study, even if only slightly, to the constitutional order as a whole. It raises questions about the role of different institutions in the constitutional order. For example, take the once-again-popular idea of “states’ rights.” If there is a power of interposition or nullification, where is it vested? In state governments or in the people of the state, acting in convention? History offers us several examples of people making arguments for a power to nullify federal law, and reveals the range of sites of that power, as well. What are the arguments for the different sites? What are the philosophical or doctrinal implications of putting this power in the hands of a state legislature or the people in convention? What are the arguments against the exercise of these different powers? How have decisions or practices rendered since those arguments were first made shifted the constitutional landscape and what is the significance of that shift?

I am hardly alone, I am sure, in teaching a constitutional history that goes beyond the case law to explore some constitutional practices in addition to constitutional precedent. But certainly I could go further than I do in reframing my constitutional history classes so that they are more the history of the US constitutional order, and less the history of the creation of constitutional doctrine and precedent.

But is that something that needs to be done? I can see lots of reasons to nudge constitutional history into a study of power, of relations (between parts of government, between governed and government), and of shifting theories of sovereignty or citizenship. Thinking of precedents (or legal arguments) as reflections of larger constitutional debates and discourses might give us a better perspective on principles that underlay those precedents. Shifting our focus so that we study how the constitutional system works (and has worked) rather than focusing our attention on what the courts tell us about the constitution might resituate the role of the courts in our constitutional order. Considering constitutional history rather than the history of constitutional law might help us better consider how, and when, the US constitutional system (or any nation’s constitutional system) participated in or contributed to global constitutional debates. And that, in turn, might give us ways, and reasons, to consider transnational and comparative constitutional study.

It strikes me that these are the sorts of issues that we should be engaging when we study or teach constitutional history, because it seems to me that the only way to understand a constitutional order is to understand all its facets, both internal and external.

But it also strikes me that that approach might be a hard sell to students, or administrators, who think professors of law (or legal history) should teach cases. And perhaps they have a point, I’m not sure. Are those of us who teach constitutional history (particularly US constitutional history) in the business of teaching cases, mostly, if not exclusively? If so, why? Because that’s what the customer wants? Because the US has a particularly legalistic constitutional order? Because professors in law schools (or professors in prelaw courses) study of cases? For some other reason?

Weekend Round-Up

• The Tennessee Bar Association has announced the winners of its "YouTube Video Contest" for middle and high schoolers. Competitors are to address some aspect of the state's "unique history of law and liberty." The entry of the middle schooler, Anna Whittemore , addresses minimum wage laws in the state's textile mills. The high school winner is Vivian Hughbanks for a video on "the Battle of Athens," which takes up "the citizen fight to restore integrity" after illegal electoral activity in McMinn County in 1946. Wikipedia reports that the proponents of the ownership of fire arms sometimes cite the event as an example of the value of the Second Amendment for citizens subject to tyrannous governments.
  

• A post by Michael Perino, St. Johns Law and the author of a biography of Ferdinand Pecora, looks to Felix Frankfurter's lobbying for James Landis's appointment to the Securities and Exchange Commission in 1934 for perspective on the pending appointment of a chief for the new Consumer Financial Protection Bureau.
  

• Among the newsreels from the 1920s and 1930s recently mounted at the Virtual Museum of the SEC Historical Society is this one, in which President Franklin D. Roosevelt defends his economic policies in Green Bay, Wisconsin, in August 1934.
  

• Jane Calvert, University of Kentucky, speaks on the John Dickinson Writings Project at the University of Delaware at 12:30, on Tuesday, May 10. Calvert is the author of Quaker Constitutionalism and the Political Thought of John Dickinson (Cambridge University Press, 2009).

• Saul Cornell, Fordham, takes on Originalism in a recent opinion piece in Dissent.

The Weekend Round-up is a weekly feature compiled by all the Legal History Bloggers.

Conference on the Napoleonic Criminal Model and the Creation of a New European Judicial Order

Via H-Net, we have the following conference announcement:

The History Department of the European University Institute (EUI) and the IAP research network "Justice and Society" organize an International Conference about "1811-2011. The Napoleonic Criminal Model and the Creation of a New European Judicial Order. Results and Prospects". The Conference will take place on the 27th and 28th of May in Villa Schiffanoia (EUI), salla Europa.

The Conference is divided in two parts. In the first part, participants will present the results of researches dedicated to the Napoleonic criminal justice, its organisation, its judiciary professions and its different stages (prosecution, trial and punishment). They will offer a complete historiographical overview about their topics and pave new ways for research. During the 2nd day, participants will present the results of studies led in countries annexed by Napoleonic Empire (Germany, Switzerland, Luxembourg, Belgium, and Italy). They will stress the strength or, on the contrary, the weakness of Napoleonic legal acculturation and legacy

The international conference will gather 22 participants coming from 7 different countries (France, Belgium, Switzerland, Germany, Canada, US and UK). This large panel is composed of the most international recognised researchers in the field of French, Social, Modern and Legal history: Alan Forrest, Robert Allen, Michael Broers, Antonio Padoa Schioppa, Thierry Lentz, Axel Tixhon, Heinz-Gerhard Haupt, Hervé Leuwers, Catherine Denys, Emmanuel Berger, Xavier Rousseaux, Jean-Pierre Royer, Frédéric Chauvaud, Jean-Pierre Allinne, Aurélien Lignereux, Pascal Bastien, Marion Godfroy-de Borms, Sylvain Rappaport, Nicolas Delpierre, Barbara Doelemeyer, Ludovic Maugué and Paolo Alvazzi del Frate.

The program (translated from French via Google Translate) is here.

Emerging Scholars Workshop: Historical Justice and Memory

Via H-Net, we have word of an Emerging Scholars Workshop on Historical Justice and Memory at Swinburne University of Technology. Here's the announcement:

We invite PhD students working on historical justice and memory to submit proposals for papers to be discussed in an emerging scholars workshop on 13 and 14 February 2012, and to be presented during the Historical Justice and Memory conference.

Interested students ought to send a detailed abstract, a synopsis of their research project and a CV to Dr Martine Hawkes by 3 June 2011. We expect to be able to subsidise the attendance of participants chosen to attend the emerging scholars workshop.

Here's more information about the conference:

The past few years have seen a plethora of case studies about attempts to deal with past injustice. Scholars have explored the work of truth commissions, the effects of apologies, debates over reparations, and trials of individual perpetrators, to name but four key themes. At the same time, there has been a burgeoning of studies about how past injustice is remembered (or forgotten) and memorialised. This conference provides a unique opportunity to link these two areas of research and to ask questions such as: To what extent is historical justice predicated on particular memories, on particular forms of remembering or on the forgetting of a particular past? How do apologies or truth commissions, for example, shape social memories of past injustice?

This conference aims to bring together scholars working on historical justice and on memory. It is trying to promote conversations across disciplinary boundaries – for example, between historians and lawyers, anthropologists and philosophers, sociologists and cinema studies scholars, heritage scholars and psychologists, human geographers and political scientists – and across national boundaries: bringing together, say, a historian working on memories of the 1965 violence in Indonesia with a lawyer doing research on the South African truth commission, and an anthropologist doing fieldwork in Romania with somebody analysing novels written in post-Pinochet Chile.

Solum on The Evolution of Contemporary Originalist Theory

What is Originalism? The Evolution of Contemporary Originalist Theory has just been posted by Lawrence B. Solum, University of Illinois College of Law.  Here's the abstract:

Debates over “originalism” have been a central focus of contemporary constitutional theory for three decades. One of the features of this debate has been disagreement about what “originalism” is. More worrisome is the possibility that the arguments between contemporary originalists and their opponents, the “living constitutionalists”, are confused – with each side of the debate making erroneous assumptions about the content of their opponent’s theories.

The aim of this chapter is to clarify these debates by providing a history of contemporary originalism and then developing an account of the core or focal content of originalist theory. The history reveals that contemporary originalist theory has evolved – the mainstream of originalist theory began with an emphasis on the original intentions of the framers but has gradually moved to the view that the “original meaning” of the constitution is the “original public meaning” of the text. Even today, originalists disagree among themselves about a variety of important questions, including the normative justification for a constitutional practice that adheres to original meaning. Despite evolution and continued disagreement, however, contemporary originalist theory has a core of agreement on two propositions. First, almost all originalists agree that the linguistic meaning of each constitutional provision was fixed at the time that provision was adopted. Second, originalists agree that our constitutional practice both is (albeit imperfectly) and should be committed to the principle that the original meaning of the Constitution constrains judicial practice.

The question whether living constitutionalists actually disagree with these core principles of originalist theory is a complex one. On one interpretation, living constitutionalism and originalism are (mostly) compatible: the constitution lives inside the “construction zone,” the boundaries of which are marked by the original meaning of the text. On another interpretation, living constitutionalism is incompatible with originalism: living constitutional doctrine and practices can override even original meaning of the text, even when that meaning is clear.

Old Myths Die Hard

When I presented a draft of Rehabilitating Lochner at the NYU Legal History Colloquium a while back, several participants took me to task for "wasting time" in spending several paragraphs rebutting the notion that Lochner and other liberty of contract cases had their origins in "Social Darwinism." The critics correctly noted that revisionist scholarship over the last forty-plus years has eviscerated this myth, but were incorrect in adding that "no one believes that anymore."

Thanks to Google Books, I was able to do a search for Lochner and Social Darwinism, and found the claim that Lochner was a product of Social Darwisnim recently repeated in the The Oxford Guide to the United States Supreme Court, in a book by prominent political scientist Rogers Smith, in a book by William Rehnquist(!), among many other sources.

This raises the interesting question of how long it takes before a consensus view of "experts" in a historical subject drives out longstanding contrary myths that non-experts continue to propagate.

Cromwell Dissertation Prize

[We have the following announcement from the ASLH's Advisory Committee on the Cromwell Prizes.]

The William Nelson Cromwell Foundation has generously funded a prize of $2500 for dissertations accepted in the previous calendar year. The Foundation awards the prize on the recommendation of the Cromwell Prize Advisory Committee of the American Society for Legal History. The Society announces the award after the annual meeting of the Cromwell Foundation, which normally takes place early in November.

The Cromwell Dissertation Prize for 2010 was awarded to Anna Leah Fidelis T. Castañeda for "Creating Exceptional Empire: American Liberal Constitutionalism and the Construction of the Constitutional Order of the Philippine Islands, 1898-1935"—a dissertation submitted for the SJD degree at Harvard University in 2009. The Committee's citation read as follows:

"This dissertation is a groundbreaking study of the foundational period of the modern Philippine state. Drawing on an extraordinary range of American and Philippine sources, Castañeda shows how the introduction of liberal and progressive constitutional institutions to a colonial context – separated powers, expanded administrative discretion, even democratic principles of governance – actually facilitated authoritarian rule, reinforcing local patterns of class domination while also smoothing the path for powerful foreign economic interests to control development. Imagined and executed on a large scale, this study makes an original and extraordinary contribution both to Filipino legal history and to the study of the legal machinery of colonialism and empire more generally.”

Update: The members of the Dissertation Subcommittee are:

Maeva Marcus, Chair
Director
Institute for Constitutional History
The New-York Historical society and
The George Washington University Law School
2000 H Street N.W.
Washington, DC 20052
mmarcus@law.gwu.edu

Risa Goluboff
Caddell & Chapman Professor of Law
Professor of History
University of Virginia School of Law
580 Massie Road
Charlottesville, VA 22903
rlg3t@virginia.edu

Professor Claire Priest
Yale Law School
127 Wall St.
New Haven, CT 06520
claire.priest@yale.edu

Michael Ross
Associate Professor
2115 Francis Scott Key
University of Maryland
College Park, MD 20742
maross@umd.edu

Book Prizes in American Legal History

[I'm moving this post up as the deadlines for submissions for the Reid Book Award (May 27) and Cromwell Book Prize (May 31) will soon be upon us. The previous recipients are here. Eligible authors, please don't be bashful about nudging your presses!]

Here is a joint announcement of the John Phillip Reid Book Award of the American Society for Legal History and the Cromwell Book Prize of the William Nelson Cromwell Foundation. The Reid Award and the Cromwell Book Prize are mutually exclusive. The Reid Award is for a book by a mid-career or senior scholar, and the Cromwell Book Prize is for a “first book” by a junior scholar. For advice where the distinction is doubtful, please consult Gerald Leonard, chair of the ASLH Committee on the John Phillip Reid Book Award, and Daniel Ernst, Chair of the Cromwell Book Prize Advisory Subcommittee.

John Phillip Reid Book Award

Named for John Phillip Reid, the prolific legal historian and founding member of the American Society for Legal History, and made possible by the generous contributions of his friends and colleagues, the John Phillip Reid Book Award is an annual award for the best monograph by a mid-career or senior scholar, published in English in any of the fields defined broadly as Anglo-American legal history. The award is given on the recommendation of the American Society for Legal History's John Philip Reid Prize Committee.

For the 2010 prize, the Reid Award Committee will accept nominations from authors, presses, or anyone else, of any book that bears a copyright date in 2010. Nominations for the Reid Award should be submitted by May 27, 2011, by sending a curriculum vitae of the author and one copy of the book to each member of the committee:

Professor Gerald Leonard
Chair, ASLH Committee on the John Phillip Reid Book Award
Boston University School of Law
765 Commonwealth Ave.
Boston, MA 02215
gleonard@bu.edu

Professor Susanna Blumenthal
University of Minnesota Law School
229 19th Ave. S.
Minneapolis, MN 55455

Professor Philip Girard
Schulich School of Law
Dalhousie University
Halifax, Nova Scotia
CANADA B3H 4H9

Catharine MacMillan
Department of Law
Queen Mary College, University of London
Mile End Road
LondonE1 4NS
UNITED KINGDOM

Professor Reva Siegel
Yale Law School
P.O. Box 208215
New Haven, CT 06520

Cromwell Book Prize

The William Nelson Cromwell Foundation was established in 1930 to promote and encourage scholarship in legal history, particularly in the colonial and early national periods of the United States. The Foundation has supported the publication of legal records as well as historical monographs. Among the prizes it annually awards is a $5000 book prize for excellence in scholarship in the field of American Legal History by a junior scholar. The prize is designed to recognize and promote new work in the field by graduate students, law students, post-doctoral fellows and faculty not yet tenured. The work may be in any area of American legal history, including constitutional and comparative studies, but scholarship in the colonial and early national periods will receive some preference. The prize is limited to “first books,” i.e., works by a junior scholar that constitute his or her first major undertaking.

The Cromwell Foundation awards the prize on the recommendation of the Cromwell Prize Advisory Committee of the American Society for Legal History. The Committee will consider books published in 2010. The Society will announce the award after the annual meeting of the Cromwell Foundation, which normally takes place early in November.

To nominate a book, please send copies of it and the curriculum vitae of its author to John D. Gordan, III, Chair of the Cromwell Prize Advisory Committee, and to each member of the Cromwell Book Prize Advisory Committee with a postmark no later than May 31, 2011.

John D. Gordan, III
Chair, Cromwell Prize Advisory Committee
Morgan, Lewis & Bockius LLP
1133 Park Avenue
New York, NY 10128

Professor Daniel R. Ernst
Chair, Cromwell Book Prize Advisory Subcommittee
Georgetown University Law Center
600 New Jersey Avenue N.W.
Washington, D.C. 20001-2075
ernst@law.georgetown.edu

Professor Christian McMillen
Department of History
Randall Hall
PO Box 400180
University of Virginia
Charlottesville, VA 22904

Professor Tony Freyer
University of Alabama School of Law
101 Paul Bryant Drive, East
Box 870382
Tuscaloosa, AL 35487-0382

Professor Laura Kalman
Department of History
University of California, Santa Barbara
Santa Barbara, CA 93106-9410

Sellars on "William Patrick and 'Crimes Against Peace' at the Tokyo Tribunal"

Kirsten Sellars (independent scholar) has posted "William Patrick and ‘Crimes Against Peace’ at the Tokyo Tribunal, 1946-1948," which is forthcoming in the Edinburgh Law Review 15, No. 2 (2011): 166-196.

Here's the abstract:

After the Second World War, the victorious allies convened the International Military Tribunal for the Far East to punish Japan’s leaders for crimes against peace and other war-related crimes. The crimes against peace charge had proved controversial at the Nuremberg Tribunal, and the sponsoring powers made considerable efforts to ensure that the Tokyo judgment reinforced the Nuremberg determination. The scope and significance of these efforts has been largely unacknowledged, as has the central role in them of the British member of the court, William Patrick, a Senator of Scotland’s College of Justice. Patrick’s role demands closer examination because it proved crucial to the judgment at Tokyo. He campaigned for unalloyed support for the main tenets of the Nuremberg Judgment, and when that support was not forthcoming, helped to forge a majority faction to ensure that they were not abandoned. Finally, and most importantly, he insisted that crimes against peace and conspiracy to commit them were retained as the central elements of the majority’s judgment.

The full paper is available here.

R. B. Bernstein reviews "Abraham Lincoln, Esq."

The Law & Politics Book Review has posted a review of ABRAHAM LINCOLN, ESQ.: THE LEGAL CAREER OF AMERICA’S GREATEST PRESIDENT, edited by Roger Billings and Frank J. Williams (Lexington: University Press of Kentucky, 2010).

The volume's origins are in a special 2009 issue of the Northern Kentucky Law Review. To the four essays published there, the editors added eight. According to reviewer R. B. Bernstein (New York Law School), "[a]ll are clear and well-written, and many are wonderfully illuminating." He recommends the book for "a wide audience – including Lincoln scholars, legal and constitutional historians, Civil War specialists, and general readers fascinated by Lincoln."

Here's a taste of the review:

Though pivotal for understanding Abraham Lincoln, his life as a lawyer – the subject illuminated by this excellent symposium – has languished in neglect until recently. The essays collected in the book under review make two points: first, that Lincoln was a great lawyer, and, second, that those qualities making him a great lawyer were integral to his Presidency and to his claims to Presidential greatness. Further, in their multifaceted account of Lincoln as lawyer, these essays prove the value of studying the legal career of a great historical figure – an enterprise already represented by projects documenting the law practices of John Adams (Wroth and Zobel 1965), Alexander Hamilton (Goebel and Smith 1964-1981), and Daniel Webster (Konefsky and King 1982-1983).

In the full review, available here, Bernstein summarizes previous scholarship on Lincoln's legal career and briefly discusses each essay. He concludes by pondering why this topic has not attracted more scholars and pleading for further research.

More on Legal Realism: Schauer Edits Llewellyn

The University of Chicago Press has released The Theory of Rules by Karl Llewellyn, a previously unpublished manuscript, edited by Frederick Schauer (Virginia--Law). When Schauer unearthed Llewellyn's unfinished manuscript, it "consisted of eight completed chapters and brief notes describing three more that were never written." Schauer "wrote an extensive introduction and numerous footnotes to shed light on Llewellyn’s goals, make connections with other work by Llewellyn and by other realists, and try to explain some of Llewellyn’s more dense prose." Schauer explained that "Most of the editing decisions were about how to explain what Llewellyn was trying to say while still, for historical reasons, allowing the reader see in full Llewellyn’s own particularly flamboyant, idiosyncratic and often weird and unclear language.” For more about Schauer's discovery of the manuscript, see the story at this link.

Here is the publisher's description of the book.

Karl N. Llewellyn was one of the founders and major figures of legal realism, and his many keen insights have a central place in American law and legal understanding. Key to Llewellyn’s thinking was his conception of rules, put forward in his numerous writings and most famously in his often mischaracterized declaration that they are “pretty playthings.” Previously unpublished, The Theory of Rules is the most cogent presentation of his profound and insightful thinking about the life of rules.

This book frames the development of Llewellyn’s thinking and describes the difference between what rules literally prescribe and what is actually done, with the gap explained by a complex array of practices, conventions, professional skills, and idiosyncrasies, most of which are devoted to achieving a law’s larger purpose rather than merely following the letter of a particular rule. Edited, annotated, and with an extensive analytic introduction by leading contemporary legal scholar Frederick Schauer, this rediscovered work contains material not found elsewhere in Llewellyn’s writings and will prove a valuable contribution to the existing literature on legal realism.

Here is one of the blurbs:

“Important on several levels—biographical, historical, and jurisprudential—Karl N. Llewellyn’s The Theory of Rules will immediately claim a place in the corpus of American legal theory. Llewellyn’s prose here is less precious and idiosyncratic than in many of his other writings, and the remaining mysteries are dispelled by Frederick Schauer’s marvelously lucid introduction and detailed notes. As to several of the core problems of legal theory—the nature of rules, the differences between rules and standards, the roles of literalism and purpose in legal interpretation, the prediction theory of law—Llewellyn and Schauer have jointly produced an indispensable text.”—Adrian Vermeule, Harvard Law School

Tamanaha, Friedman, and Cuddihy Reviewed

Over at Faculty Lounge, Al Brophy noted the publication of the book review issue of the Michigan Law Review. It includes reviews of Brian Tamanaha's Beyond the Formalist-Realist Divide: The Role of Politics in Judging; Barry Friedman's The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution; and William J. Cuddihy's The Fourth Amendment: Origins and Original Meaning.

Hat tip.

Thoughts on Security & Disability in the Journal of American History

Readers may find the presidential address to the 2010 Organization of American Historians, by Professor Elaine Tyler May (Minnesota--History & American Studies), timely and of interest. It is printed in the current issue of the Journal of American History (March 2011). The abstract of May's talk follows, along with a link to the reprint of the address (access is to members, only).

Security against Democracy: The Legacy of the Cold War at Home

In her presidential address to the 2010 Organization of American Historians annual meeting, Elaine Tyler May observes that over the last half century, Americans have become obsessed with security: national as well as personal. When American leaders talk about security, they often emphasize the need to protect and preserve our democracy. But since the early Cold War era, Americans have understood that it was their individual, private responsibility to provide security for themselves and their families in the face of internal and external threats. This has led Americans to distrust each other as well as their government and to develop a vigilante mentality. May argues that rather than strengthening democracy, the quest for security has undermined and weakened democratic practices. (pp. 939–57) Read online

Scholars of civil rights and disability rights might find the following article of interest.

Disability, Antiprofessionalism, and Civil Rights: The National Federation of the Blind and the “Right to Organize” in the 1950s

Felicia Kornbluh problematizes the familiar timeline of civil rights histories. Instead of seeing the major civil rights campaigns in America as a succession of movements, starting with the one against Jim Crow in the late 1940s and ending with the movement for disability rights in the 1970s, Kornbluh suggests that these post–World War II movements emerged simultaneously and influenced one another as they developed. She argues that the challenges to medical, psychiatric, and social-scientific expertise usually associated with the 1960s and 1970s may in fact have originated in the activism of blind people and others in the movement for disability rights in the 1940s. Finally, by focusing on issues of disability, such as the passage of legislation creating the civilian program of occupational rehabilitation, she offers a new view of the 1950s as an era of expansion in domestic social and health policies. (pp. 1023–47) Read online >

Yoo, Forward to symposium issue on The Unitary Executive: Presidential Power from Washington to Bush

Presidential Power in Historical Perspective: Reflections' on Calabresi and Yoo's the Unitary Executive has just been posted by Christopher S. Yoo, University of Pennsylvania Law School.  It is the Forward to a special symposium issue of the University of Pennsylvania Journal of Constitutional Law (2010), taking up Calabresi and Yoo's book The Unitary Executive:  Presidential Power from Washington to Bush.  The full table of contents is here.  Here's Yoo's abstract:

On February 6 and 7, 2009, more than three dozen of the nation’s most distinguished commentators on presidential power gathered in Philadelphia to explore themes raised by a book authored by Steven Calabresi and I co-authored reviewing the history of presidential practices with respect to the unitary executive. The conference honoring our book and the special journal issue bringing together the articles presented there provide a welcome opportunity both to look backwards on the history of our project and to look forwards at the questions yet to be answered.

Looking for a Thesis Topic?

Here is one topic I'd like to see someone pursue.

In the last decade of the 19th century and the first decade of the 20th century, as many African-Americans moved to interstate within the South as moved to the North during the much more famous great migration of the 1910s. Yet there is very little written about this massive intrasouth migration. As with the later migration to the North, African-American migrants within the South were seeking economic opportunity and jurisdictions that granted them more security and rights. Surprisingly, for example, the Delta area of Mississippi, which had a severe labor shortage, was considered a haven for African-Americans through the mid-1890s.

A student who wanted to pursue a PhD thesis on this topic could choose one of several routes. First, an especially ambitious thesis would try to cover the entirety of this migration. Another option would be to focus on one aspect of this migration, such as the migration to the Mississippi Delta. My favorite option, for what it's worth, would be to focus on the activities of a man named Robert A. "Peg-Leg" Williams, a labor agent who claimed responsibility for moving up to 100,000 African-American migrants to Texas, Mississippi, and Louisiana. Williams was a very colorful character whose exploits frequently appear in local newspapers in the late 1890s. His labor agent business was eventually shut down by a series of state and local laws, leading to the obscure Supreme Court case of Williams v. Fears in 1900. As good a place as any to start looking into any of these ideas would be chapter 1 of my book Only One Place of Redress, which cites almost all of the extant literature circa 2000 on African-American migration within the South in the late 19th century. You can download the law review article that eventually evolved into that chapter here.

New From Georgetown Law's Special Collections

The Special Collections and Archives Department of the Edward Bennett Williams Library at Georgetown Law has updated its website to provide a much better view of its holdings, including the recently acquired McLaughlin Brothers Collection. As the description of the collection explains:

The collection was donated in January 2007 by Pamela Skewes-Cox, great-grand daughter of William Law McLaughlin, a Georgetown Law alumnus [pictured at right]. The collection spans the years 1879-1913 and is comprised of letters and other forms of correspondence, written by or to William Law McLaughlin and his young brother Daniel Joseph McLaughlin while they were students at Georgetown. William McLaughlin was a student at Georgetown Law and his brother Daniel Joseph was a student at Georgetown College. After graduating both brothers went on to practice law in Deadwood, Dakota with their father. Their letters provide a unique view of Georgetown student life in the late 1800s.

By way of a beginning...

Having gotten through most of the academic year without allergies (a happy byproduct of being on leave and far from the always blossoming South), the pollen season has finally caught up with me. I guess it's nature's way of helping prepare me for my return to Florida. But as a result, I'm more than a bit foggy and unfocused and this is probably not a good time for trying to write a complicated blog post. Instead, I thought I'd start the month with a question or two about teaching.

Before the questions, we need a bit of context. Once a year, I teach a legal history course (or seminar) to a mix of second and third year law students and graduate students (mostly history grad students, though I also get some from political science, anthropology, English). Some years, the course is a lecture, sometimes the course is a seminar. The subject varies from year to year as well; it might be your basic bread and butter American Legal and Constitutional History course, or a legal or constitutional history course focused on a particular topic (work law, one year, citizenship law another), or a seminar in comparative constitutional history.

By and large, the courses work, or at least they appear to have done so. We more or less cover what I want to cover and deal with the things I think matter. My teaching evaluations for the courses track those of my other courses, students speak to me after the semester is over, some students take a course again from me another year, others ask for letters of recommendation, some sign up to participate in our JD/MA program. These seem to be signs that the courses and seminars are reasonably successful.

But looking back on the various semesters, I'm not sure I've quite pulled the courses off. Specifically, I have the feeling that what I've managed to do is teach to some not terribly happy medium--at some point early on in the semester we find a space that the law students and the non-law students find tolerable and then we stay there.

That's better than a lot of alternatives, but it means that the non-law students don't benefit from taking a course with law students and the law students don't get much out of taking a course with the non-law students. Instead of managing to create a new and interesting synthesis that pulls from their different disciplinary perspectives, I wind up with a course that seems both generic and a little dull.

Of course, perhaps students' disciplinary identity is such it is impossible to create a new synthesis. Or maybe its possible, but not every year with a random group of students (some of whom might be appalled to learn that they were signing up for new experiences and perspectives). Or maybe its possible, but only in courses taught by truly gifted teachers.

But let's imagine that it's possible for the merely competent, rather than the extremely gifted, to teach a legal history course that manages to create a synthesis between law and history. If so, how can it be done? What does it take to encourage students to engage one another at points of difference and build on that engagement?

I suppose that to get to that point, we need to engage the assumption underlying it, so feel free to do that, too. Am I right to think that a class that produces some sort of interdisciplinary synthesis is more valuable than a class that simply muddles through and leaves everyone a bit more informed at the end of the semester than they were at the beginning?

"Wise Choices": Caplan on Choosing a Dissertation Project

The April 2011 issue of the AHA's newsmagazine, Perspectives on History, is now available to non-subscribers. I particularly enjoyed the Art of History column, by Jane Caplan (University of Oxford). Caplan takes on the topic of how graduate students should choose a dissertation project. Here's a taste:

Enthusiasm alone . . . is not enough. A pleasure in the past may be a necessary motivation, but it is not sufficient to launch graduate research, however elegantly it is articulated. Undergraduates heading to graduate school often need some prodding to grasp this and detach themselves from the subjective expressions of fascination with the past and their grandparents’ stories that powered their college applications. They must learn how to locate these pleasures and motivations in the collective intellectual endeavours they are about to join, which is also the first step towards seeing themselves as writers of history, not just consumers.

Choosing a dissertation topic is more weighty than any subsequent research decision, because it is the means by which graduate students will try out whether life as a historian suits them. And whatever decision is made will accompany them for the next five to ten years of their lives as either welcome partner or intolerable incubus—and it had better be the former. To be sure, the heavy hand of disciplinary reproduction is at work here, claiming initiates as they cross the threshold into the profession. The constraints on imagination that this can impose also need to be resisted by the freshness and intellectual curiosity of new recruits that will help to remake the intellectual agenda.

Read the full column, titled "Wise Choices," here.

Other highlights from the issue: Thomas H. Appleton, Jr., investigates the history of the qualifying exam; Catherine Kelly writes about getting published digitally; and Krista Sigler makes the case for the teaching potential of Twitter.

Law Blog Helpful Links

For those looking for law blog commentary related to today's news on the death of Osama Bin Laden, two places to go are Opinio Juris and Lawfare.

Rehabilitating Lochner Discussion Today, 4:00 pm EST

I'm speaking about my new obok Rehabilitating Lochner today at 4:00 p.m. EST at the Cato Institute, with comments by Louis Michael Seidman, Georgetown University Law Center, and Gregory E. Maggs, George Washington University School of Law. You can watch a live video feed at this link. If you decide to tune in, I guarantee you will learn something new about Lochner v. New York, the liberty of contract doctrine, and their critics.

Race, Radicalism, and Repression on the Pacific Coast

The conference Race, Radicalism, and Repression on the Pacific Coast and Beyond will be held at the University of Washington, May 12-14, 2011. The conference organizers explain:

Radical movements embracing and demanding racial justice have figured prominently in the history of the “left coast” of the United States. They have also generated violent responses, including state repression, that reverberated across the United States and around the world.

The program is here.

Hat tip. Image credit.

Why Write a Book?

Academic historians may find this to be a ridiculous question, as books are "the coin of the realm" among professional historians. But among the law professors, the traditional medium of academic discourse has been articles in law reviews. While publishing academic books has become far more common in recent years, it's still the case that many prominent legal academics never write a book, and have no desire to.

So let's say you're a law professor, especially one, like me, with little formal graduate training in history, who has published several articles on a common historical theme in law reviews. Your dean and your colleagues don't seem to value academic books, and indeed seem to think that an article published in a top twenty law review is more impressive than a book published with a major university press. Why might you nevertheless choose to pursue a time-consuming book project?

First, if you are engaged in serious historical research, and want historians to be aware of and engage with your research, a book is a far better avenue to do so than are law review articles. Indeed, it strikes me that historians who don't teach at law schools are quite unlikely to read law review articles, but will review the same material if published in a peer-reviewed university press book. Even if they don't read the book, historians will have an opportunity to get the gist of your thesis by reading reviews of the book in their journals.

For example, my first book, Only Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal, was reviewed in the Journal of American History, Labor History, Law and History Review, American Journal of Legal History, Reviews and American History, Journal of Economic History, among others. It also attracted reviews from several economics and public policy journals. So if you want to make an academic splash beyond the confines of legal academia, books are the way to go (but be aware that historians will judge you by the standards of their profession, and will be merciless if you do "law office history"). Even within legal academia, an academic press book suggests a seriousness and importance beyond what could be expected from a few law review articles.

Second, the world of academic publishing, while certainly not completely free from bias in favor of established scholars who teach at top schools, is far more meritocratic than the world of law reviews edited by 2nd and 3rd year law students. Thus, for example, a professor teaching at a "fourth tier" law school is far more likely to get a publication contract from a top academic press and than a publication offer from a top ten law review. Peer review obviously makes a significant difference in this regard.

Third, and most important, the process of writing a book will almost certainly make your work better and deeper (albeit at a great cost in time and energy). We all entertain fantasies about simply stringing together our past law review articles and turning them into a book. Indeed, I indulged this fantasy to far too great an extent when contemplating my new book, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform. In practice, stringing law review articles together typically results in a bad, potentially unreadable, book. But taking a series of articles, editing them, re-editing them, deleting material that becomes extraneous to your narrative, and discovering new insights as one engages in further research and analysis, until you have a coherent manuscript--which then in turn benefits from the comments of peer reviewers and others--is a very beneficial process.

My original Rehabilitating Lochner book proposal had two themes. First, that Lochner and the liberty of contract doctrine had their origins in the natural rights tradition with the assistance of the anti-class legislation tradition. Second, that the practical effects of the liberty of contract doctrine were significantly more positive than has generally been assumed, especially with regard to civil liberties and the rights of minorities and women. As the manuscript developed, I de-emphasized the first theme (given that I and others had virtually exhausted the topic in the law review literature, didn't have much new to say, and thought that only a few potential readers really cared enough to follow a very lengthy discussion of the natural right vs. class legislation vs. other theories debate), while developing a new theme: that liberty of contract's Progressive opponents had significant ideological blindspots that make their views on a range of constitutional matters unattractive across the modern political spectrum (e.g., their general support for coercive eugenics and segregation laws). In other words, that one's assessment of the liberty of contract line of cases must include an assessment of the unattractive historically available alternative.

Finally, once I had already completed a draft manuscript, a four-hour long workshop at NYU over a two week period persuaded me to add another theme to the book: that modern liberal Fourteenth Amendment jurisprudence is as at least as much a legacy of the libertarian inclinations of pre-New Deal supporters of liberty of contract (and also of a more generally limited police power) as of their statist Progressive opponents (who thought the police power to be virtually unlimited).

This last theme is arguably the most significant theme of the book, especially given the dearth of historical work on the transition from Progressivism to New Deal and post-New Deal liberalism. Yet if I had limited my work to law reviews, it's unlikely I would have ever pursued it.

Legal History as Continuing Legal Education

Looks like the legal profession has embraced history as part of a lawyer’s continuing legal education even more broadly than I thought. In Saturday’s Weekend Round-Up, I noted that the Dallas Bar Association was offering CLE credit for a session in September with the University of Texas historian Jacqueline Jones. I’ve since learned that Texas lawyers don’t have to wait until the fall. At noon on Thursday, May 5, David Upham of the University of Dallas will make a CLE-accredited presentation to the Dallas Bar Association's Legal History Discussion Group on the topic "Pro-Slavery and Anti-Slavery Interpretations of the 'Privileges and Immunities of Citizens.’” More information is here.

And on Tuesday, May 10, at 5:45, North Carolina lawyers can receive two-hours of CLE credit for a dinner and discussion at the Campbell Law School in Raleigh by the historians Paul H. Bergeron and David O. Stewart on “The Impeachment of President Andrew Johnson” (a Raleigh native!). The event is sponsored by the John Locke Foundation’s North Carolina History Project, Campbell Law School, and the North Carolina Institute for Constitutional Law. Tickets and more information here.

Image credit

Welcome to Elizabeth Dale and David Bernstein

The Legal History Blog welcomes Elizabeth Dale and David Bernstein, who will be guest blogging during the month of May.

Elizabeth is an Associate Professor of History at the University of Florida, and an affiliated professor at the Levin College of Law at UF.  She is the author of The Rule of Justice: The People of Chicago versus Zephyr Davis (2001) and Debating- and Creating-Authority: The Failure of a Constitutional Ideal in Massachusetts Bay, 1629-1649 (2001).  Elizabeth has two (two!) books forthcoming this year:  Criminal Justice in the United States, 1789–1939, in the Cambridge University Press series New Histories of American Law, co-edited by Christopher Tomlins and Michael Grossberg; and The Chicago Trunk Murder, forthcoming from the Northern Illinois University Press. She blogs at Constitutional Orders.

David is the Foundation Professor of Law at George Mason University School of Law.  His first widely noted book was Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal. David has just published Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press). More works are here. He blogs at Volokh Conspiracy.

Welcome to Elizabeth and David!

Liberty's Exiles, The Veil's Resurgence, The Sentence, and more in the book pages

LIBERTY’S EXILES: American Loyalists in the Revolutionary World by Maya Jasanoff expands "the geography of the American revolution," Thomas Bender writes in the New York Times, focusing on "the residents of the 13 colonies who chose to leave their homes rather than become citizens of the new republic."  The author

builds on two recent trends in historical scholarship. First, she recognizes the transnational, even global, dimensions of national histories, and second, she pays close attention to the workings of empire, including the beneficial ones. Within this enlarged framework, she argues that the American revolutionaries’ claim that they were establishing a “beacon of liberty” prompted the British, who thought of themselves in the same terms, to reform their empire along more liberal lines. She gives the phrase “spirit of 1783” to this new impulse to reform imperial rule, referring to the year the empire gave up the colonies.

Read the rest here.

"Around the world past and present, women cover their heads before God and man," writes Christine Stansell, in a review of A Quiet Revolution: The Veil's Resurgence, from the Middle East to America by Leila Ahmed, in The New Republic/The Book.  "All these forms of veiling refer, religiously or secularly, to the old idea that women have something that should be hidden," she writes. "Call it modesty, or propriety; but at heart it is about the sexual shame that women incur if they reveal themselves in public."  Ahmed's book is on veiling in Egypt.  For Stansell, the "more persuasive and original part" of the book "is an account of immigrant Islamist politics in the United States since September 11."  More details are here.

For Stanley Fish, "a great sentence is like a great athletic performance," writes Simon Blackburn, reviewing Fish's new book, How to Write a Sentence: And How to Read One, in The New Republic/The Book. "It is an example of something done supremely well, so well that it cannot be bettered. Other similar feats will come along, but only to stand alongside it."

Also this week, a New York Times review of  IN THE BASEMENT OF THE IVORY TOWER:  Confessions Of An Accidental Academic, by Professor X; and Eric Foner reviews THE UNION WAR by Gary W. Gallagher in the New York Times.