McPherson reviews Oakes, The Radical and the Republican: Frederick Douglass, Abraham Lincoln, and the Triumph of Antislavery Politics

The Radical and the Republican: Frederick Douglass, Abraham Lincoln, and the Triumph of Antislavery Politics by James Oakes (Norton) is reviewed by James M. McPherson, Princeton, in the March 29 issue of the New York Review of Books. McPherson begins:

Abraham Lincoln was "emphatically, the black man's President," wrote the black abolitionist Frederick Douglass in 1865, "the first to show any respect for their rights as men." A decade later, however, in a speech at the unveiling of an emancipation monument in Washington, Douglass described Lincoln as "preeminently the white man's President." To his largely white audience on this occasion, Douglass declared that "you are the children of Abraham Lincoln. We are at best only his step-children." Later in the same speech, Douglass brought together his Hegelian thesis and antithesis in a final synthesis. Whatever Lincoln's flaws may have been in the eyes of racial egalitarians, he said "in his heart of hearts he loathed and hated slavery." His firm wartime leadership saved the nation and freed it "from the great crime of slavery.... The hour and the man of our redemption had met in the person of Abraham Lincoln."

As James Oakes notes in this astute and polished study, Douglass's speech in 1876 "mimicked his own shifting perspective" on Lincoln over the previous two decades. Born a slave on Maryland's eastern shore, Douglass escaped to the North and freedom in 1838 and soon emerged as one of the nation's leading abolitionists. During the Civil War he spoke out eloquently and repeatedly to urge expansion of the war for the Union into a war for black freedom. Because Lincoln seemed to move too slowly and reluctantly in that direction, Douglass berated him as a proslavery wolf in antislavery sheep's clothing. "Abraham Lincoln is no more fit for the place he holds than was James Buchanan," declared an angry Douglass in July 1862, "and the latter was no more the miserable tool of traitors than the former is allowing himself to be." Lincoln had "steadily refused to proclaim, as he had the constitutional and moral right to proclaim, complete emancipation to all the slaves of rebels.... The country is destined to become sick of...Lincoln, and the sooner the better."[1]

In Douglass's dialectical path toward Lincoln, this was the time of his most outspoken opposition. He could not know that at the very moment he was condemning the President as no better than the proslavery Buchanan, Lincoln had decided to issue an emancipation proclamation that would accomplish most of what Douglass demanded. When Lincoln did precisely that two months later, Douglass was ecstatic. "We shout for joy that we live to record this righteous decree," he announced.[2]


The essay, "What Did He Really Think About Race?" continues here.

Reviewed: Richardson, West From Appomattox: The Reconstruction of America After the Civil War

West From Appomattox: The Reconstruction of America After the Civil War by Heather Cox Richardson, just published by Yale University Press, is reviewed today in the Chicago Tribune by Elizabeth Young, Mt. Holyoke. This book takes Reconstruction west. The review begins:

A striking photograph reproduced in Heather Cox Richardson's "West From Appomattox: The Reconstruction of America After the Civil War" depicts Nat Love, a black man born a slave who left the South after the Civil War to become a cowboy in the West. In the photograph, Love, who later wrote a memoir of his Western adventures as Deadwood Dick, stands in full cowboy gear, saddle at his feet, rifle at his side, hand on his ammunition belt. His stance is confident and his gaze direct.

This image highlights some of the book's key themes. As its title suggests, the volume extends the usual frame of the immediate postwar era from the relation between North and South to head westward, for "the West was part and parcel of the story of the reconstruction years and must be put back into it." Nat Love's decision to become a cowboy, for example, was part of a larger exodus of emancipated blacks from the racist South to the potentially more open West; about one-third of cowboys, Richardson notes, were men of color. Broadening the geographical focus of Reconstruction, she also extends its time span beyond the traditional closing date of 1877, to the turn of the century. Within this range, she interweaves an overarching narrative of national development with the stories of individuals. Nat Love appears alongside "Buffalo Bill" Cody, Sitting Bull, Julia Ward Howe, Jesse James, Booker T. Washington, Ida B. Wells and others.

Richardson...begins by noting the overlap between the political divisions of Civil War America and voting distinctions of the present, with Confederate states corresponding to today's red states and Union states to blue. How did the blue-gray map become the blue-red one?

For Richardson, the answer is to be found in the "heated debate over the proper relationship of the government to its citizens." From conflicts over the federal government's reach into the postwar South to struggles over labor unions, this debate, she argues, came to be dominated by the interests of a newly consolidated middle class, which distinguished between "hardworking Americans" and "special interests."...This story begins, for Richardson, with the growing power of the federal government during the Civil War....The West was central to this question, since it offered a major outlet for free labor, including that of emancipated blacks.

For the rest of this very interesting review (recommended), click here.

Taylor and Einhorn on Graber, Dred Scott and the Problem of Constitutional Evil

Mark A. Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press, 2006) has just been reviewed on H-CivWar by Michael J. C. Taylor, Department of Social Sciences, Dickinson State University, and circulated via H-Law. The review celebrates Graber's analysis of Dred Scott, but then takes him to task for not writing a more popular narrative history. This strikes me as an odd criticism, for Graber, a writer of particular clarity in constitutional studies, has not set out to be the David McCullough of constitutional history. The review appears at the same time as a review of another book which also finds legal history less than gripping: "The slow process of legal deliberations, dragging on year after year, is not necessarily the stuff of pulse-pounding prose, so [the author] works diligently to make the story interesting to the reader." In essence, Taylor's criticism of Graber is that he has not accomplished something that does not appear to have been the goal of his book.

A review that takes up the book on its own terms appeared on H-Law before the Legal History Blog was created. This ones speaks more to the question of the relationship between the way historians do history, and the way constitutional scholars do it. It is by Robin L. Einhorn, Department of History, University of California, Berkeley. She writes:

Mark A. Graber has written a brilliant book that is flawed in a way that only a brilliant book can be. It consists of a provocative introduction, three long essays (essentially law review articles), and a short coda, all taking Dred Scott v. Sandford (1857) as a jumping-off point for reflections about constitutional interpretation and politics. The first essay criticizes constitutional theorists who misuse the case. The second defends Chief Justice Roger Taney's ruling as consistent with the vision of the framers. The third criticizes Abraham Lincoln's constitutionalism as inconsistent with the vision of the framers. The coda, verging on the bizarre, urges contemporary Americans to treat our own constitutional disputes as if we were voting for John Bell over Abraham Lincoln in 1860.

Although readers of H-Law are unlikely to need reminding, the 1857 ruling in the Dred Scott case was twofold: that African Americans could not become citizens of the United States and that Congress could not ban slavery in the territories (or delegate that power to territorial legislatures). African Americans could not be citizens because there was a consensus among the founders that "they had no rights which the white man is bound to respect." Congress could not ban slavery in the territories because slaves were "property" and therefore protected by the due process clause of the Fifth Amendment ("an act of Congress which deprives a citizen ... of his ... property, merely because he ... brought his property into a particular Territory of the United States ... could hardly be dignified with the name of due process of law").

Graber is a political scientist and constitutional lawyer; I am a historian. While political scientists and historians are both intended audiences for this book, it is aimed most of all at the lawyers. Graber wants to persuade lawyers, judges, and legal theorists that "constitutional evil" is a real, even inherent, problem of political life that cannot be evaded or defined away--but that also cannot be confronted without risking cataclysmic violence. He presents this understanding of constitutional evil as an originalist basis for future constitutional interpretation by making a historical argument that the framers designed the Constitution around it, and a normative argument that the framers were right, that their solution remains the only hope for peace in an ideologically polarized society. The problem of constitutional evil exists when there is basic disagreement in a society about what counts as evil. For the framers, this disagreement was about slavery. For the United States today, Graber's main example is abortion, where the evil is either abortion or public control over women's bodies. In other societies, such disagreements usually arise from diverse ethno-religious commitments.

For the rest of Einhorn's review, click here. For Michael J.C. Taylor's review, click here. For Graber's blogging on on Dred Scott, constitutional history and other topics at Balkinization, click here.

Reviewed: Blank, Virgin: The Untouched History

Virgin: The Untouched History, by Hanne Blank (Bloomsbury, 2007) is reviewed this weekend in the San Francisco Chronicle. Bob Blaisdell writes:

Though scholarly, Hanne Blank's "Virgin: The Untouched History" treats her topic with a writer's, not an academic's, interest. That is, she's curious about and surprised by what she discovers, and keeps the book moving along at a reader's pace. She acknowledges the gap between what she expected to find and the paucity of details of what, to her amazement, she did find: "I had stumbled across a subject clearly related to the human body, one whose existence and importance has been asserted for thousands of years, and yet it appeared, somehow, to have left virtually no trace in the modern medical literature." ...

Ignorance about women's bodies has never stopped anybody from offering theories of virginity detection. The Gitanos of Spain continue a wedding-night tradition that depends upon a nonexistent bit of anatomy. Into the 1990s, a pervasive myth among desperate AIDS victims in South Africa was that sex with virgins could cure them.

Not allowing us to sneer, Blank continually reminds us of our own distressing cultural history: for example, the English lesbian in 2004 who auctioned off her "virginity," which "was nothing more or less than a tangible confirmation of the ideology that a woman is not sexually 'real' in her own right, and that it takes a man and his penis to make her so."...

"Families, religious authorities, and governments once faced little opposition to the idea that they had a legitimate stake in people's sexual behavior. Now we are increasingly likely to believe that the primary legitimate stakeholder in an individual's sexual life is the individual him- or herself." Our federal government's official recent support for abstinence over contraception troubles Blank, but she takes heart that "perhaps the only thing that is at all clear about this unprecedented legislation of virginity-flavored agitprop is that a politically powerful right wing, faced with the cumulative social change of the last century, has begun to panic in earnest" and that it "may be best understood as a signal of nothing more than a deep-seated terror of change."


For the rest, click here.


Legal historians will be interested in the website that accompanies the book, with links to "virginity-related websites," new and information about age of consent, "honor crimes," etc. A perusal reveals somewhat limited information at this point, but the book is just being released and the site is new. If the author maintains and updates the site, it will be a continuing, valuable resource.

Andrew Jackson and the Politics of Martial Law: this Sunday on Book TV

Tomorrow, Sunday, March 18 at 8:00 am eastern
Andrew Jackson and the Politics of Martial Law: Nationalism, Civil Liberties, and Partisanship by Matthew Warshauer is featured on C-Span2 Book TV.

Description: In "Andrew Jackson and the Politics of Martial Law," Matthew Warshauer recounts Andrew Jackson's victory at the Battle of New Orleans in 1815 and his subsequent declaration of martial law. The author reports that Abraham Lincoln would later invoke the use of martial law during the Civil War citing the Jackson case as justification. Mr. Warshauer documents these cases and examines the U.S. history of the suspension of civil liberties during wartime.

Author Bio: Matthew Warshauer is an associate professor of history at Central Connecticut State University. He is the author of "Andrew Jackson: First Men, America's Presidents."

The right time to begin planning for next year's fellowship applications is...NOW

Fellowships for the 2007-08 school year are just being finalized by various programs and will soon be announced. Application deadlines for the next round would seem to be a long way off, but actually, the best time to begin working on applications for 2008-09 is right now.

One reason for this is that an important source of support, the Fellowship program at the National Endowment for the Humanities, is on a different cycle. Applications for NEH Fellowships are being accepted NOW. The deadline is May 1, 2007, for fellowships that begin as early as January 1, 2008 or as late as July 1, 2009. For a full set of NEH deadlines, click here.

My advice: if you are going to apply for anything, you should apply for everything that is germane to your topic. Your chances of getting any one fellowship may be slim. The more you apply for, the greater your chance of ending up with something. And once one proposal is written, it can be refined and revised for different programs.

More advice: look for the less well known sources of support that may be targeted toward someone working on a topic like yours. You should apply for the big name national fellowships, but the more obscure ones may be easier to land.

How do you find fellowships like this? The best source I know for grants and fellowships is a searchable database on the website of the American Historical Association. The database is only accessible to AHA members, so that means you should join the AHA now, so that you will have access to the database soon. The student membership fee is $37. Fees for faculty are on a sliding scale based on income, from $42 to $141. There are, of course, lots of other reasons to join the AHA. You can find information about many fellowships on your own on-line, but the AHA database may help you find funding sources you had not considered. If readers know of other good websites for research funding, please post a comment.

Even more advice: Many people find it awkward to ask for references for fellowship applications. I've encountered more than one scholar who has tried to minimize the burden of letter writing by asking lots of different people in the same year, so that each person wouldn't have to write many letters. That approach, in my view, is not ideal. The burden in writing letters is in writing the first letter. Once I've written one, it is easy for me to revise it for other fellowship applications. So the better approach would be to ask a small number of references to write letters for everything you're applying for in one year. In a subsequent year, you can turn to others.

Finally, if you are not successful, get some good feedback on your application, and then try again. Many eminent historians with fancy fellowships on their c.v.s were rejected for these fellowships and others, before succeeding. It may be the particular project; it may be that you need more publications to show a strong track record; it may just be that it was a particularly competitive year and you came close. I would venture to guess that everyone who has been successful at grants and fellowships has a larger pile of rejection letters in a file cabinet somewhere than those letters with an award.

Wildenthal on Labor Law, Tribal Sovereignty and the Indian Law Canons of Construction

Bryan H. Wildenthal, Thomas Jefferson School of Law, has posted a new paper, Federal Labor Law, Tribal Sovereignty, and the Indian Law Canons of Construction. Here's the abstract:

In 2004 the National Labor Relations Board, over a powerful dissent, overruled its own 1976 precedent and effectively rewrote the National Labor Relations Act of 1935 to apply to Indian tribal government employment within Indian country. In February 2007 the D.C. Circuit upheld this decision in San Manuel Band v. NLRB. What was the occasion for these startling and activist exercises in administrative and judicial lawmaking? Apparently, the growth and success of Indian tribal casinos. Judge Janice Rogers Brown's opinion for the D.C. Circuit purported to reaffirm longstanding Supreme Court canons of construction governing Indian law, yet she ended up affirming the Board's decision. This article argues, in part, that the Board and D.C. Circuit decisions violate the canons and that only Congress, after careful and deliberate consideration of all competing policy interests, has any authority to make such a dramatic change in federal labor law as applied to Indian country.

But the scope and implications of this article go much further. The San Manuel decisions are profoundly important for what they portend about the future of tribal sovereignty and Indian law generally. They show how lower courts and administrative agencies may recast important principles affecting entire fields of law without the guidance or approval of either Congress or the Supreme Court, and even against clear teachings of the Supreme Court.

San Manuel is the culmination of an approach, often referred to as the Tuscarora-Coeur d'Alene doctrine, that lower courts have been building for more than twenty years on the basis of a stray alternative holding in the Supreme Court's 1960 Tuscarora decision—one of the most reviled cases of the now-discredited Termination Era of Indian law (1945-61). This doctrine, never approved by the Supreme Court, threatens to radically undermine the canons of construction heretofore guiding the entire field of Indian law. This doctrine has already affected the interpretation of not just the NLRA but a wide range of so-called generally applicable federal laws. Yet, as this article shows in a wide-ranging examination of the Indian law canons, the lower-court Coeur d'Alene decision lending its name to this doctrine was decided the same year that the Supreme curtailed and laid to rest its own troubling statement in Tuscarora that was its seed. During the years since, the Supreme Court has generally adhered to the canons, while lower courts have proceeded to dismantle them in case after case, San Manuel being the latest and most important.

If the Supreme Court reviews San Manuel, it seems destined to be one of the most important cases in modern Indian law. If not, it may in some ways be even more important, because it calls into question more generally the Supreme Court's willingness and ability to guide and police the development of judicial case law in important fields of federal policy and legislation.

The final part of the article draws upon the insights of constitutional case law on federal-state relations (notably the Supreme Court's 1985 Garcia decision), and other sources, to argue that Indian nations deserve the same freedom as states to experiment with government programs that some may disparage as non-traditional. Indeed, the Board and D.C. Circuit commercial-traditional taxonomy in San Manuel makes no sense and is patronizing to Indian tribes.

Smith critiques APD but still celebrates Bensel in review of The American Ballot Box in the Mid-Nineteenth Century

The American Ballot Box in the Mid-Nineteenth Century, (Cambridge University Press, 2004) by Richard F. Bensel is reviewed by Adam I. P. Smith, University College, London at Reviews in History, maintained by the Institute of Historical Research, London. Smith's interesting review and Bensel's response can't be posted here in full, so here is just a taste. This will be of interest not only to election scholars, political historians and the many Bensel fans, but to legal historians interested in the relationship between APD and history. Notwithstanding his criticism of APD, Smith finds important contributions due to Bensel's APD-based methodology. Smith begins:

The American Ballot Box is the latest of a series of important books by Richard Bensel, one of the leading practitioners of ‘American Political Development’ (APD), a subfield within the discipline of political science in the United States. Two other leading APD scholars, Karen Orren and Stephen Skowronek, recently published what amounts to a manifesto in which they defined their subfield as the search for ‘connections between politics in the past and politics in the present’. It aspires, Orren and Skowronek argued, to build ‘theories of politics that are more attentive than others available to specifically historical processes of change and the political issues that those processes pose’ (1). Although within the politics of American political science, APD scholars are methodologically allied to comparativists, the subfield is concerned, as its name implies, only with the past politics of the United States. When they speak and write about their methodology, APD scholars have two negative reference groups in mind. The first are their rational-choice theorist departmental colleagues to whom they feel the need to defend the entire project of historicizing past politics. The second group are historians, who, in the imagination of political scientists, are generally theoretically impoverished and narrow in focus. Political historians in history departments, for most of whom the ‘search for patterns’—that is, the identification of what is distinctive and what common about historical phenomena, and the effort to classify and identify linkages and processes of change—is the basic aim of their research, may well raise a quizzical eye-brow at such claims. Notwithstanding the slightly paranoid tendency—elaborated most fully by Orren and Skowrenk—to provide an intellectual ‘creation myth’ for APD which largely ignores the contribution that historians have made to the study of past politics, political scientists like Bensel have in fact made a substantial contribution to the revival of political history in the last fifteen years or so.

In The American Ballot Box, Bensel tackles one of the critical questions preoccupying a generation of political historians: how to explain the apparently very high levels of political participation in the Civil War era. From the perspective of a historian, Bensel’s approach to this familiar issue neatly illuminates some of the distinctive strengths and weaknesses of APD.

The crux of the analytical problem Bensel tackles is the extent to which the mid-nineteenth century electorate responded rationally to public policy choices. Were voters informed and engaged in the political process, weighing up party platforms and listening critically to stump speeches? Did this era of near-universal white manhood suffrage represent, in the words of Walter Dean Burnham, a ‘lost Atlantis’ of participatory democracy? Or did popular partisanship merely reflect ethno-cultural identities? The ‘New Political History’ of the 1960s and 1970s was essentially an application to the study of politics of the new social history with its quantitative methodology. To the new political historians, the mass parties of the 1830s onwards were coalitions of ethnic and religious groups in American society. This ethnocultural approach fitted well with the ‘critical election’ theory that influenced a generation of political historians—and despite recent challenges displays a remarkable resilience (2). Historians like Joel Silbey painted a compelling picture of nineteenth-century politics in which voters’ partisanship remained fixed over many years until a ‘critical election’ signified a realignment of the electorate. For Silbey and many other historians, the purpose of electioneering was essentially to get known supporters to the polls (3). Elections were determined by whichever side did the best job of getting the vote out....

In methodological terms, Bensel’s contribution is that he tackles this old question using a surprisingly under-used source; the testimony from witnesses at special hearings conducted by Congress into disputed elections....Using this particularly rich source base, Bensel has created a more detailed and colourful description of the practice of voting than any other recent historian. Since, unlike most historians who have tackled this topic, Bensel is content to rely only on this one type of evidence, he does not concern himself with the campaigns but only with polling day itself. If this seems an unduly narrow focus, it is also a welcome corrective to most of the rest of the literature, which, because it draws on campaign ephemera and newspapers, tends to assume that the electoral process on polling day was a reflection and culmination of the preceding campaign. Bensel, in contrast, draws attention to such factors as the physical setting of the polling place, the sociological composition of the crowds, and the laws regulating the elections as factors that might have influenced voters....

Bensel’s roots in APD, rather than in a history department, are evident in the self-confidence with which he makes a bold argument on the basis of a narrow source base. But his familiarity with the theoretical literature on democratization generates some extremely valuable insights....Bensel might have written an even more valuable book if he had drawn more explicitly on the literature on comparative democratization....The most important contribution this book makes is to add weight to the view that nineteenth-century American democracy was fundamentally different in its underlying assumptions from that of the twentieth century. It was not pluralist but was based on a very clear concept of communal identity.

For the full review (recommended) click here. For Bensel's response, click here.

Borschberg on Grotius' forgotten early writings

Peter Borschberg, Department of History, National University of Singapore, has posted a new paper, Grotius, the Social Contract and Political Resistance. A Study of the Unpublished Theses Lvi. Here's the abstract:

The Theses LVI belong to a series of hitherto unpublished early manuscripts of the Dutch humanist and jurisconsult Hugo Grotius (1583-1645) that were acquired by the University of Leiden in 1864. It is not certain when the Theses were written, but preliminary research on the physical manuscript and the sources cited indicate two possible windows. The first is around 1602-1605, that is roughly at a time when Grotius was also working on his Commentary on the Law of Prize and Booty (De Iure Praedae Commentarius). The second dating places the genesis of the manuscrbipt around 1613-1615.

In the context of Grotius' writings, the Theses LVI assume an important position for several reasons: They raise questions about state formation, the duty of citizens to the state and the right of political resistance in far greater detail than in any other work of the celebrated Dutch humanist. The Theses LVI also feature important reading notes that yield priceless insights into the sources that Grotius directly consulted and their influence on his ideas. The manuscript grants modern scholars a unique glimpse into the working mind of its author. Evidence points not only to the ferocious haste with which Grotius wrote his works, but also the occasional sloppiness of his reading and research habits.

Contents: 1. Grotius and the social contract: the context of the Theses LVI - 2. The manuscript of the Theses LVI and other relevant writings of Grotius - 3. Thoughts on the sources adduced by Grotius - 4. Grotius' method and program in the Theses LVI - 5. God, creation and the nature of man - 6. The genesis of the commonwealth (state, respublica) via the social contract - 7. Sovereignty in the Theses LVI - 8. Resisting tyranny - 9. Afterthoughts - 10. Bibliography of cited manuscripts and printed sources.

Photo credit.

Web Gateway to the ASLH Annual Meeting

In what I believe is a first for the American Society for Legal History, the Sandra O'Connor College of Law at Arizona State University, host of this year's annual meeting, has created an ASLH Annual Meeting website that serves as a gateway to the site of the meeting, the Tempe/Phoenix area, and information related to the annual meeting.

Besides hotel information and other useful details about the metro area, the site includes a page on travel to Tempe/Phoenix from Europe and the UK.

The site has links to ASLH Program Committee information, so that all ASLH meeting information can be accessed from one website. Many thanks to the Sandra Day O'Connor College of Law for providing this great resource!

Photo credit.

The Constitution for College Teachers: Workshop this Summer

Interdisciplinary Workshop on the Constitution for College Teachers
July 8-14, 2007, in Albany, NY
Application Deadline: April 13, 2007

The Institute for Constitutional Studies at George Washington University is pleased to announce an interdisciplinary workshop on the Constitution for college instructors. “New Approaches to Teaching the Constitution” will be offered from July 8 to 14, 2007, in Albany, NY, in association with the University at Albany. The workshop will be led by Professor Sandra F.Van Burkleo of Wayne State University, with guest instructors from several academic disciplines (including Richard Hamm of the University at Albany, Paul Finkelman of Albany Law School, and Stephen Schechter of Russell Sage College).

The workshop is designed for college-level instructors who now teach or plan to teach undergraduate courses in constitutional studies, including constitutional history, constitutional law, and related subjects. All college-level instructors are welcome to apply, including adjuncts and part-time faculty members, from any academic discipline associated with constitutional studies (history, political science, law, anthropology, sociology, literary criticism, etc.). However,preference will be given to applicants from the Northeast region of the United States and those who teach at liberal arts colleges. Participants will receive a $500 stipend and some travel expenses and will be provided with dormitory housing during the workshop.

For application procedures and more details about the workshop, visit the ICS website or contact the Institute’s director, Maeva Marcus.

Bellia on the Origins of Article III "Arising Under" Jurisdiction

Anthony J. Bellia, Jr., Notre Dame, has a new article forthcoming in the Duke Law Journal, The Origins of Article III 'Arising Under' Jurisdiction. Here's the abstract:

Article III of the Constitution provides that the judicial Power of the United States extends to all cases arising under the Constitution, laws, and treaties of the United States. What the phrase arising under imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III arising under jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction - principles that animated early American jurisprudence regarding the scope of arising under jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood arising under jurisdiction to provide a limited means for ensuring the supremacy of federal law. Third, it explains how early American courts, invoking English jurisdictional principles, determined Article III arising under jurisdiction. In particular, the Article explains, in proper historical context, early Marshall Court opinions addressing the scope of Article III arising under jurisdiction, including the landmark 1824 case Osborn v. United States. Contrary to conventional characterizations of these opinions, the Marshall Court did not deem any case that might involve a federal question to be one arising under federal law. Rather, against the background of English jurisdictional principles, the Marshall Court explicated the Arising Under Clause to mean that a federal court could hear cases in which a federal law was determinative of a right or title asserted in the proceeding before it. By observing jurisdictional rules derived from English law, federal courts embraced a practice that enabled them to enforce the supremacy of federal law, but checked the extent to which they would encroach upon the jurisdiction of state courts.

Hamilton: New Book argues that U.S. Power to Confiscate Property Declined during Civil War

Daniel W. Hamilton, The Limits of Sovereignty: Property Confiscation in the Union and the Confederacy during the Civil War has just been published by the University of Chicago Press. Mark Graber gushes over the book at Balkinization, calling it a "model for other young scholars" and emphasizing that:

the book successfully advances an intriguing thesis. While the Civil War is normally understood as a time when federal power expanded, federal power to confiscate, in fact, contracted. Americans during the Revolutionary war confiscated property with little opposition (though courts after the war made limited efforts to restore property). Americans during the Civil War, however, bitterly fought over the extent to which government could confiscate and, in doing so, began to reconceptualize property rights in ways that would make way for greater constitutional protection for property after the war. I suspect a good many of us are going to have to revise a number of lectures to incorporate this material, which is not only scholarly but a fun read. Whatever you make of the general thesis, one I find largely convincing, The Limits of Sovereignty clearly demonstrates why students of American constitutional development must understand the confiscation debates of the Civil War and does so with polish and intelligence.


Alfred Brophy also likes it, and weighs in here.


Here's the press blurb:

Americans take for granted that government does not have the right to permanently seize private property without just compensation. Yet for much of American history, such a view constituted the weaker side of an ongoing argument about government sovereignty and individual rights. What brought about this drastic shift in legal and political thought?

Daniel W. Hamilton locates that change in the crucible of the Civil War. In the early days of the war, Congress passed the First and Second Confiscation Acts, authorizing the Union to seize private property in the rebellious states of the Confederacy, and the Confederate Congress responded with the broader Sequestration Act. The competing acts fueled a fierce, sustained debate among legislators and lawyers about the principles underlying alternative ideas of private property and state power, a debate which by 1870 was increasingly dominated by today’s view of more limited government power.

Through its exploration of this little-studied consequence of the debates over confiscation during the Civil War, The Limits of Sovereignty will be essential to an understanding of the place of private property in American law and legal history.

Fletcher on the Original Understanding of Indian Tribes

Yet another originalism paper, this time on the status of American Indians. Matthew L.M. Fletcher's paper (Michigan State) is The Original Understanding of the Political Status of Indian Tribes. Here's the abstract:

This Article will demonstrate that virtually all elements of Indian affairs can be traced to the decision of the United States to recognize Indian tribes as political entities and to make Indian law and policy based on the political status of Indian tribes. Indian law is often assumed to be race law. As a result, observers tend to try to force Indian law into the constitutional race law paradigm. Justice Blackmun's footnote 24 in Morton v. Mancari – describing federal legislation and rules relating to Indian tribes as a political classification – hit upon the proper understanding of Indian law. The implementation of the rule of Johnson v. M'Intosh, Indian treaties, and Acts of the First Congress offers significant evidence that the original understanding of the Founders was that Indian tribes and the federal government enjoy a political relationship, not racial.

Richards and Solove recover the lost history of the Right to Privacy

Neil M. Richards, Washington University, and Daniel J. Solove, George Washington, have a new article forthcoming in the Georgetown Law Journal, Privacy's Other Path: Recovering the Law of Confidentiality. Here's the abstract:

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis "invented" the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual's "inviolate personality." English law, however, rejected Warren and Brandeis's conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law's divergent paths reveals that each body of law's conception of privacy has much to teach the other.

The demise(s) of Captain America

I was thinking of commenting on the reported death of Captain America, an event surely to capture the imagination of a generation of American Studies Ph.D. dissertation writers, but was having trouble finding a legal history tie-in. Then Volokh Conspiracy, of all places, beat me to it, linking to today's Wall Street Journal piece on the superhero.

In Marvel's telling of the story, "Cap's" life has an arch, from its anti-Nazi origins in the 1940s, to his murder on the steps of Foley Square in the midst of a civil war battle stemming from controversy over a government registration scheme with Patriot Act resonances. (Captain America opposed registration.)

But this is not the only contemporary story of the demise of this symbol of America. Another was displayed in the Whitney Museum in fall 2003: The American Effect, a rendering of global perspectives on the United States. The exhibit included "Nursing Home," by French artist Gilles Barbier, with life-sized sculptures of aged superheroes, including Captain America. Cap is the superhero in most dire circumstances, lying on a stretcher attached to an IV, an aging Wonder Woman standing watch beside him. "These comic heroes were once, like the United States, indestructible," the Daily Princetonian noted in its review. "Is America past its prime as well?"


These images stand in contrast to each other. A robust hero shot down while fighting for his conception of American principles. A forgotten icon facing his final days on life support. In the comic book version, all expect some sort of resurrection. Perhaps the most important question is whether the vision of America from the outside in, the global image represented in The American Effect, can experience a parallel rebirth.

Update: While there is no credible evidence that it has played a role in Marvel's version of Cap's demise, it appears that Captain America has some real life enemies. The National Review Online today links to a paper "The Betrayal of Captain America," written by Michael Medved and Michael Lackner for the Foundation for Defense of Democracies. The paper claims that Captain America comics are "packaged in deceptively patriotic covers," but " They express anti-war sentiments, condemn America as a racist state, liken the actions of our Armed Forces to the murderous crimes of Islamic terrorists, portray terrorists as advocates for sympathetic causes, show others to be victims of U.S. aggression, and reveal our Government officials to be scheming, evil villains." The paper is here.

Another update, thanks to a tip from Deceth in the comments. The politics get even more interesting, as Steven Colbert links Captain America and the Attorney General Gonzales controversy. Colbert's take-away lesson: "Fighting to protect civil liberties like free speech and privacy isn’t just quaint. It’s dangerous. That’s what killed Captain America. He had to be written out."



Yet another update: What killed Captain America? He was all too human, concludes Austin Grossman in the March 17 New York Times.

AHA membership passes anti-war resolution

Members of the American Historical Association have ratified the Resolution on United States Government Practices Inimical to the Values of the Historical Profession. The Resolution criticizes specific Bush Administration policies, such as excluding foreign scholars from the United States, and goes on to call upon members to "do whatever they can to bring the Iraq war to a speedy conclusion." The broader aim led to controversy, leading the AHA to adopt an unusual procedure, calling for an on-line discussion and vote of its membership. Nearly 15% of members voted. The resolution was supported by 75% of those who cast votes.

Inside Higher Ed covers the story. The AHA announcement is here. Thanks to Cliopatria for the tip.

Vasudev on Equity Pricing and Information in Stock Market History

P. M. Vasudev, Ph.D. candidate, York University, Osgoode Hall Law School, has posted a new paper, Equity Pricing, the Informational Regime and Efficient Markets: A Historical Perspective. Here's the abstract:

Share prices are the very heart of the stock market, and this paper traces the practices that have been historically applied in the stock market for pricing equity shares. The story begins at the Exchange Alley in 17th century London, England and travels its way to 20th century America. The study is in the context of (a) the informational regime that had its origin in England in the nineteenth century and was adopted for securities regulation in the United States in the 1930s, and (b) the Efficient Markets Hypothesis formulated in the economics discipline, as an offshoot of the informational regime.

Katz on Understanding Rehnquist in Dickerson v. U.S.

Daniel Martin Katz, Political Science, Michigan (Ph.D. student), has an article on SSRN that is forthcoming in the Journal of Law and Politics, Institutional Rules, Strategic Behavior and the Legacy of Chief Justice William Rehnquist: Setting the Record Straight on Dickerson v. United States. In Dickerson, the Court considered whether to overrule Miranda v. Arizona. Rehnquist's majority opinion reaffirmed Miranda. Here's the abstract:

Why did Justice Rehnquist behave the way he did in Dickerson v. United States? As written, many prevailing accounts accept Justice Rehnquist's opinion in Dickerson v. United States at face value and disavow the potential of a strategic explanation. The difficulty with the non-strategic accounts is their failure to outline explicitly the evidence supporting the uniqueness of their theory. Specifically, these explanations largely ignore the alternative set of preferences which could have produced the Chief's decision. This is troubling because prior scholarship demonstrates that a chief justice possesses a unique set of institutional powers which provides significant incentive for him to behave sophisticatedly. Many prevailing explanations for Dickerson at a minimum are incomplete because they fail to determine whether his vote and opinion were the result of moderation, fidelity to traditional legal principles, or, in fact, strategic behavior. This article pursues a uniqueness claim, arguing the gravamen of available evidence supports a strategic explanation for Justice Rehnquist's behavior in Dickerson. To do this, the article first reviews the methodological debate which exists within the social science scholarship, a debate relevant to the competing explanations for the Dickerson decision. Next, the article explores the strategic or quasi-game theoretic approach by describing the multistage sophisticated process which produces all Supreme Court decisions. It culminates in Figure 1.1, a general diagram that is carried forward into Part II of the article. Part II directly considers the Dickerson decision. This section begins with a description of the Supreme Court's Miranda jurisprudence before reviewing the specific facts and procedural history of the case. Next, Part II reviews Justice Rehnquist's Miranda-related decisions which, taken together, demonstrate the truly anomalous nature of the Dickerson opinion. The article then outlines its strategic account, an approach rejecting many prevailing explanations of Rehnquist's behavior. Strategic and non-strategic behaviors are often observationally equivalent. Thus, in order firmly to support its strategic theory, this article concludes with a discussion of several important post-Dickerson decisions including Chavez v. Martinez, Missouri v. Seibert, and United States v. Patane, where the Chief Justice surprisingly supports the preservation of certain exceptions to Miranda even after his Dickerson opinion supposedly afforded Miranda full constitutional status. The cases are critical to the analysis because they help determine what end Chief Justice Rehnquist actually achieved in his Dickerson opinion. He successfully froze a set of pre-Dickerson Miranda exceptions which he personally developed during his thirty year tenure on the Court. It is from this perspective that commentators in fact are correct to argue that Dickerson is critical to understanding the legacy of the late Chief Justice.

Remembering Powell on the Original Understanding of Original Intent

There has been much posted on SSRN recently on orginalism. Since not all Legal History Blog readers will be familiar with the classics on this topic, this seems a good time for a reminder of the pathbreaking article that examined what the framers themselves thought about original intent: H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harvard Law Review 885 (1984). Here's the abstract:

When interpreting the Constitution, judges and commentators often invoke the "original intent of the framers" in support of their positions. Many claim that such an interpretative strategy is not only currently desireable, but indeed was the expectation of the Constitution's drafters and early interpreters. In this Article, Professor Powell examines the historical validity of the claim that the framers of the Constitution expected the future interpreters to seek the meaning of the document in the framers' intent. He first examines the various cultural traditions that influenced legal interpretations at the time of the Constitution's birth. Turning to the history of the Constitution's framing, ratification, and early interpretation, Professor Powell argues that although early constitutional discourse did contain references to "original intention" and the "intent of the framers," the meaning of such terms was markedly different from their current usage. He concludes that modern resort to the "intent of the framers" can gain no support from the assertion that such was the framer's expectation, for the framers themselves did not believe such an interpretive strategy to be appropriate.

To read the article, click here.

Maggs: A Concise Guide to the Federalist Papers as a Source of Original Meaning

Gregory E. Maggs, George Washington Univ., has posted a new paper, A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution. Here's the abstract:

Many lawyers, judges, law clerks, and legal scholars feel unprepared to make or evaluate claims about the original meaning of the Constitution based on the Federalist Papers. The typical law school curriculum acknowledges the importance of the Federalist Papers - usually by assigning Supreme Court cases which cite them - but does not treat the essays in depth. As a result, many law students and graduates still need accessible information about the creation, content, and distribution of the essays, manageable summaries of the theories under which the Federalist Papers might provide evidence of the original meaning, and instruction on possible grounds for impeaching claims about the original meaning based on the Federalist Papers. I hope to address these needs in this guide to the Federalist Papers. The guide provides the essential background that lawyers, judges, law clerks, and legal scholars ought to have before advancing, contesting, or evaluating claims about the original meaning of the Constitution based on the Federalist Papers. I have tried to keep the guide concise in the hope that the intended audience will have time to read it. At the same time, I believe that the guide is sufficiently analytical to promote critical thinking, careful judgment, and judicious evaluation of arguments that rely on the Federalist Papers.

Williams on the Myth of Dual Federalism in Commerce Clause History

Norman Williams, Willamette, has posted an article, The Commerce Clause and the Myth of Dual Federalism, forthcoming in the UCLA Law Review. Here's the abstract:

Despite its substantial theoretical flaws, Dual Federalism – the model of American federalism according to which the field of federal regulation is separated from the field of state regulation in a mutually exclusive (or close thereto) fashion – continues to attract sophisticated adherents, some for instrumental reasons and others on historical grounds. This article debunks the myth that the U.S. Supreme Court was ever committed to a Dual Federalist interpretation of the Commerce Clause from which it subsequently departed. As I argue, prior to the Civil War, the Supreme Court expressly embraced overlapping federal and state regulatory authority with respect to interstate commerce. And, even with respect to the Gilded Age between the Civil War and New Deal, the Court's commitment to Dual Federalism was only nominal. The Court deployed the same terminology in reviewing federal and state commercial regulations and taxes, but its application of the doctrinal rules and its understanding of the underlying theoretical basis for the rules differed substantially depending upon whether it was federal or state action at issue. Understanding the Court's rejection of Dual Federalism and the underlying reasons for it fatally undermines the historical argument for a return to Dual Federalism. At the same time, appreciating the full, nuanced-filled history of the Court's Commerce Clause jurisprudence provides some much needed historical context for assessing the current Court's preoccupation with federalism.

Whittington: New Book on the role of Presidents in Fostering Judicial Supremacy

Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University has a new book, just out: Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. I have not yet seen it, but Whittington's work on American constitutionalism is essential reading. Here's the press blurb:

Should the Supreme Court have the last word when it comes to interpreting the Constitution? The justices on the Supreme Court certainly seem to think so--and their critics say that this position threatens democracy. But Keith Whittington argues that the Court's justices have not simply seized power and circumvented politics. The justices have had power thrust upon them--by politicians, for the benefit of politicians. In this sweeping political history of judicial supremacy in America, Whittington shows that presidents and political leaders of all stripes have worked to put the Court on a pedestal and have encouraged its justices to accept the role of ultimate interpreters of the Constitution.

Whittington examines why presidents have often found judicial supremacy to be in their best interest, why they have rarely assumed responsibility for interpreting the Constitution, and why constitutional leadership has often been passed to the courts. The unprecedented assertiveness of the Rehnquist Court in striking down acts of Congress is only the most recent example of a development that began with the founding generation itself. Presidential bids for constitutional leadership have been rare, but reflect the temporary political advantage in doing so. Far more often, presidents have cooperated in increasing the Court's power and encouraging its activism. Challenging the conventional wisdom that judges have usurped democracy, Whittington shows that judicial supremacy is the product of democratic politics.

Mark Graber at Balkinization calls the book a "must read for any one interested in American constitutional law, history and politics." Graber continues:

Unlike traditional scholars, who tell the story of American constitutional development through the lens of the Supreme Court, Whittington tells the story of American constitutional development, American judicial development, in particular, through the lens of the presidency. His work highlights how presidents in different phases of political time sometimes champion and sometimes oppose judicial power, and how the construction of judicial power in the United States is in large part the outcome of presidential efforts over time to fashion a federal judiciary that would serve a complex set of executive interests. As I say on the back of the book, "the historical evidence is complete and compelling" (Mark Tushnet uses the words "elegant, clearly presented, and persuasive"). Most important for readers interested in contemporary constitutional politics, Whittington makes clear that we will not understand the likely trajectory of the Roberts Court and the present Republican affinity for judicial activism unless we understand the reasons why the Bush administration has sought to fashion an exceptionally active judiciary, in particular one likely to be increasingly committed to executive power.

Call for Preyer Award Submissions from Junior Scholars in Legal History

The Kathryn T. Preyer Memorial Committee of the American Society for Legal History invites submissions for the Kathryn T. Preyer Scholars Competition.

Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to young legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two younger legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. (Whether there is a Kathryn T. Preyer Memorial Panel at the meeting, as there was this year, or whether the Preyer Scholars present their papers as part of other panel depends on the subject-matter of the winning papers and on what is on the rest of the program.) The generosity of Professor Preyer's friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting.

The two winners of the competition will be named Kathryn T. Preyer Scholars. Each will present the paper that he or she submitted to the competition at the Society's annual meeting in Tempe on October 25-28, 2007. Kathryn T. Preyer Scholars will receive a $250 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals.

Submissions are welcome on any legal, institutional and/or constitutional aspect of American history and the history of the Atlantic World. Graduate students, law students, and other early-career scholars who have presented no more than two papers at a national conference are eligible to apply. Papers already submitted to the ASLH Program Committee, whether or not accepted for an existing panel, and papers never submitted are all equally eligible for the competition.

Submissions should include a curriculum vitae of the author, contact information, and a complete draft of the paper to be presented. The draft may be longer than could be presented in the time available at the meeting (twenty minutes) and should contain supporting documentation, but one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The deadline for submission is June 15, 2007. The Preyer Scholars will be named by August 1.

Please send electronic submissions to the chair of the Preyer Commitee, Laura Kalman (kalman@history.ucsb.edu), and she will forward them to the other committee members.

Committee members include: Laura Kalman, Chair, University of California, Santa Barbara; Lyndsay Campbell, University of California, Berkeley; Christine Desan, Harvard University; Sarah Barringer Gordon, University of Pennsylvania; David Konig, Washington University in St. Louis.

Reviewed: Powers Reserved for the People and the States: A History of the 9th and 10th Amendments

POWERS RESERVED FOR THE PEOPLE AND THE STATES: A HISTORY OF THE NINTH AND TENTH AMENDMENTS, Thomas B. McAffee, Jay S. Bybee, and Christopher Bryant (Praeger, 2006) is reviewed by David Ponet, Department of Political Science, Columbia University, in the Law and Politics Book Review. Ponet begins:

In keeping with this series, Thomas B. McAffee, Jay S. Bybee, and Christopher Bryant have set out to provide a guide to the history of the 9th and 10th amendments for lawyers, laypersons, and academics alike. At least for the non-lawyer, the 9th and 10th amendments are arguably among the more obscure of the Bill of Rights – perhaps because as these authors cogently demonstrate, the two amendments have largely fallen into obsolescence, if not permanent interment. But in the process of marching the reader through the initial emergence and subsequent fates of these amendments, the authors have tacitly and explicitly touched on certain of the vexing tensions that often, if not always, confound federal democratic systems. Indeed, according to many traditional conceptions of sovereignty, the sovereign power is supreme and indivisible, the final instance of power and authority, un-beholden to any other authority outside itself (see Bodin 1992; Hobbes 1996; Rousseau 1997; Schmitt 1985; Austin 1995). Yet the Framers of the American constitution in a sense tried to do just that – that is, divide or layer sovereignty – as they sought to create a ‘dual sovereignty’ system with state and federal governments as coexistent and coequal. Even more, McAffee, Bybee, and Bryant note that the Framers were also animated by some commitment to popular sovereignty. Although the authors sidestep the difficult task of defining sovereignty and popular sovereignty, presumably they mean that the Framers held ‘the people,’ either the nation as a whole or the people organized variously in the separate states, as the ultimate fount of power and authority.

The 9th and 10th amendments are known by many as the “federalism amendments.” The 9th seeks to clarify that the enumeration of particular rights ought not be construed as the full extent of rights retained by the people – it seems to guard against the presumption of a limited rights scheme. The authors demonstrate with their historical recasting that opponents of a Bill of Rights feared that such an enumeration posed the danger of a presumption against other rights not explicitly listed. The 10th amendment, meanwhile, cryptically reserves those other powers not expressly delegated to Congress or prohibited from Congress as being reserved to the states or the people. McAffee, Bybee, and Bryant appropriately ask at the start of the book: “What were these rights that the people retained? What rights did the states reserve? And why was the Constitution so indefinite as to reserve rights to the states or the people, without specifying which of those parties reserved the right” (p.2)? [*225] The authors argue that state legislatures represented the sovereign people and were accordingly conceived as holding plenary power unless the people expressly proscribed state power. Accepting this claim, which is likely historical in nature, it begs questions regarding the role of the House of Representatives which also constituted a locus of popular sovereignty (see Madison’s Federalist Paper # 39). In fact, the authors note an 18th century conception of sovereignty that governed for a time, wherein only one entity could be in possession of sovereignty at one time. It bears mentioning that one of the great experiments inherent in the creation of America’s federal system was the attempt to institutionalize several instances of sovereignty that were concurrent on national and local levels. While not taking on directly the competing or vague notions of sovereignty that abounded (particularly when squared with notions of republicanism or democracy), the tensions that federalism wrought with respect to sovereignty linger throughout the book.

For the rest, click here.

ML King's Radicalism emphasized in two books reviewed in Chicago Trib

Eric Arnesen, Univ. of Illinois at Chicago, reviews two new books on Martin Luther King, Jr., in today's Chicago Tribune. The books are:

From Civil Rights to Human Rights: Martin Luther King, Jr., and the Struggle for Economic Justice, by Thomas F. Jackson (University of Pennsylvania Press);

Going Down Jericho Road: The Memphis Strike, Martin Luther King's Last Campaign, by Michael K. Honey (Norton).

Arnesen begins:

When he was assassinated in April 1968, Martin Luther King Jr. had gone to Memphis to lead a controversial community march in support of municipal sanitation workers who, weeks earlier, had gone out on strike. Hundreds of black men, recently affiliated with the American Federation of State, County and Municipal Employees, or AFSCME, were demanding union recognition and protesting against their abysmally low wages, harsh working conditions and demeaning treatment at the hands of white supervisors.

The legislative victories of the civil rights movement in 1964 and 1965 may have ended legalized segregation and disenfranchisement, but they hardly touched the economic status of Memphis' black community....

Michael K. Honey's "Going Down Jericho Road" and Thomas F. Jackson's "From Civil Rights to Human Rights" explore a dimension of civil rights history-the struggle for economic rights and dignity-that has been treated as a subsidiary theme in the larger literature and national mythology, when it has been treated at all. The Memphis story of King and "the plight of the unemployed and poor people in America who worked `full-time jobs at part-time wages,' " Honey believes, "provides a window through which we can understand the struggles of the 1960s as well as the deep obstacles to King's dream of a united, peaceful, integrated, democratic America."

For Jackson, the Memphis strike and King's Poor People's Campaign mark the chronological end of his account, which is largely concerned with establishing King's economic radicalism and re-emphasizing his sharp critique of American foreign policy, both of which, he believes, have been forgotten, minimized, or misrepresented.

Together, Honey and Jackson advance a portrait of King and the civil rights movement that is far more radical than the common popular image conveyed by the endless repetition of the 1963 "I have a dream" speech.

For the rest of this excellent review, click here.

Legal History at Minnesota

Last year, Harvard Law School was the school most prominently building in legal history. This year, Minnesota has significantly strengthened its ranks in the field. Brian Leiter reports that Minnesota has made two important lateral hires: Thomas Gallanis from Washington and Lee, and Susanna Blumenthal from the University of Michigan. Barbara Welke, at Minnesota in the Dept. of History, also spends 1/4 of her time over at the law school.

There is, of course, significant strength at Minnesota in history. The school is home to Cold War American culture scholar Elaine Tyler May, U.S. women's history scholar Sara Evans, immigration scholar Erika Lee, whose book was just profiled here, and others.

The "Civilizing Process" and persistence of the Duel: Brown reviews Carroll, Blood and Violence in Early Modern France

Stuart Carroll, Blood and Violence in Early Modern France (Oxford University Press, 2006) is reviewed on H-Law by Howard G. Brown, Department of History, SUNY Binghamton. Brown begins:

Stuart Carroll's challenging book is a study of what he calls "vindicatory violence" as perpetrated by French nobles between the late fifteenth and the late seventeenth centuries. It is a social and cultural history based primarily on the archival detritus of legal institutions. He believes that a study of this sort will serve to correct misleading interpretations ofnoble violence, especially of the duel, generated by historians who rely exclusively on printed sources such as pamphlets, treatises, and memoirs. If Stuart Carroll is right, and I think he is, then Norbert Elias was wrong. Elias viewed the sixteenth and seventeenth centuries as the most important period in the "civilizing process" in Europe. This is when the still barbarous medieval knight was transformed by the cultural power of dynastic states into the self-controlled aristocrat polished to a high sheen by courtly etiquette. France, and especially the court of Louis XIV,played a privileged part in this process, facilitating the birth of the Enlightenment and civil society. Such an interpretation simply cannot be sustained in the light of Carroll's evidence. French nobles had no idea that they were supposed to be taking a teleological path to civility. Quite the contrary. The duel, which first gained popularity in the late sixteenth century, did not so much ritualize and regularize noble violence, as provide a fig leaf for the naked slaughter of one noble by another. Equally, the blood feud, so often taken as proof of societal primitivism, actually flourished for a hundred years (1560-1660). The decline of dueling and feuding in the late seventeenth century did not result, therefore, from the "civilizing process," but from the militarization of the nobility for the purposes of foreign war. This satisfied the nobles' penchant for using public displays of violence to justify and defend their elevated status. Thus, military service to the king finally took the place of "vindicatory violence" in the construction of noble identity.

For the rest, click here.

Action Requested on Presidential Records Act Amendments

The Organization of American Historians has just distributed to members this call for action from the National Coalition for History:

On March 8, 2007, the House Oversight and Government Reform Committee unanimously approved H.R. 1255, the "Presidential Records Act Amendments of 2007." The bill is expected to go to the House floor the week of March 12.

The National Coalition for History is asking everyone in the historical and archival community to contact their House member as soon as possible and ask that they support H.R. 1255. A summary of the bill is available below.

Here is a link to the NCH's CapWiz legislative grassroots site. This site allows you to either send a pre-written electronic letter to your Member of Congress or to edit the letter we have prepared to express your own personal views.

It is important that you act TODAY, since the bill may come up as early as next week!

Overturning the Bush Executive Order. Under the Presidential Records Act, presidential records are supposed to be released to historians and the public 12 years after the end of a presidential administration. In November 2001, President George W. Bush issued Executive Order 13233 which overturned an executive order issued by President Reagan and gave current and former presidents and vice presidents broad authority to withhold presidential records or delay their release indefinitely. The Presidential Records Act Amendments of 2007 would nullify the Bush executive order and establish procedures to ensure the timely release of presidential records.

Establishing a Deadline for Review of Records. Under the Bush executive order, the Archivist must wait for both the current and former president to approve the release of presidential records, a review process that can continue indefinitely. Under the bill, the current and former president would have a set time period of no longer than 40 business days to raise objections to the release of these records by the Archivist.

Limiting the Authority of Former Presidents to Withhold Presidential Records. Under the Reagan executive order, a former president could request that the incumbent president assert a claim of executive privilege and thereby stop the release of the records. If the incumbent president decided not to assert executive privilege, however, the records would be released unless the former president could persuade a court to uphold the former president's assertion of the privilege. The Bush executive order reversed this process and required the incumbent president to sustain the executive privilege claim of the former president unless a person seeking access could persuade a court to reject the claim. In effect, the Bush order gave former presidents virtually unlimited authority to withhold presidential records through assertions of executive privilege. The legislation would restore the Reagan approach, giving the incumbent president the discretion to reject ill-founded assertions of executive privilege by former presidents.

Requiring the President to Make Privilege Claims Personally. Under the Bush executive order, designees of the former president could assert privilege claims after the death of the president, in effect making the right to assert executive privilege an asset of the former president's estate. The bill would make clear that the right to claim executive privilege is personal to current and former presidents and cannot be bequeathed to assistants, relatives, or descendants.

Eliminating Executive Privilege Claims for Vice Presidents. In an unprecedented step, the Bush executive order authorized former vice presidents to assert executive privilege claims over vice presidential records. The bill restores the long-standing understanding that the right to assert executive privilege over presidential records is a right held only by presidents.

On-line "Symposium" on Tanenhaus/Schlesinger

Cliopatria hosts an on-line discussion of New York Times Book Review Editor Sam Tanenhaus's essay on Arthur Schlesinger, History, Written in the Present Tense. Included is my response to Tanenhaus, here.

Klerman on Judges, Money and Jurisdictional Competition in English Legal History

Dan Klerman, USC, has another new paper, Jurisdictional Competition and the Evolution of the Common Law. Here's the abstract:

This paper explores the role jurisdictional competition played in the development of the common law. For most of English legal history, there were several courts with overlapping jurisdiction. In addition, judges received fees on a per case basis. As a result, judges had an incentive to hear more cases. The central argument of this article is that, since plaintiffs chose the forum, judges and their courts competed by making the law more favorable to plaintiffs. Courts expanded their jurisdictions to give plaintiffs more choices, made their procedures cheaper, swifter and more effective, and developed legal doctrines which made it difficult for defendants to prevail. Of course, jurisdictional competition was not without constraints, most importantly Parliament and Chancery. This paper tries to show how important features of the common law, including the structure of contract law, can be explained as the result of competition among courts and the constraints on that competition. Starting in 1799, statutes took fees away from the judges. The hypothesis that competition induced a pro-plaintiff bias is tested by quantitative analysis of judicial decisionmaking before and after those statutes.

DeMott Rethinks the First Restatement of Agency

Deborah DeMott, Duke, has posted a new article, forthcoming in the Southern Illinois University Law Review, The First Restatement of Agency: What Was the Agenda?
Here's the abstract:

This paper originated with a presentation at the 2007 AALS meeting on a panel: “Did the First Restatements Implement a Reform Agenda?” The panel, which examined several of the first Restatements, was stimulated by Professor Natalie Hull's thesis that the founders of the American Law Institute, which produced the Restatements, were progressive legal academics who saw the ALI as a potential vehicle for legal reform. In my assessment, although the first Restatement of Agency provided a coherent and systematic account of its subject–no small accomplishment–its agenda could not fairly be characterized as reformist in a conventional sense. Indeed, the Reporters for Agency explicitly defended the inclusion of a number of common law rules explicitly characterized as unsound, outdated, even “barbarous” and “shocking” in extreme instances.

My paper provides an account of how this happened. I begin with the Reporters–Floyd Mechem and Warren Seavey–the characters most central to the Agency Restatement. Their professional and personal biographies help understand what Mechem and Seavey understood their work to be. This was, first and foremost, to construct and articulate a coherent account of agency doctrine and thereby establish their subject's position as a subject of legal scholarship. I also examine contributions from others who worked to produce the first Restatement: the project's Advisers, the ALI's first Director and its Council, and culminating debates on the project at ALI Annual Meetings. The prospect that the Agency Restatement would serve as a vehicle for substantive legal reform was substantially reduced by an unquestioned and narrow understanding of what should count as “the law” and by a circumscribed definition of the proper function of Restatements. The project began in 1923 and concluded with approval of a proposed final draft at the ALI's 1933 Annual Meeting. Although I rely for the most part on published sources (which include minutes of Council meetings from the ALI's early days), my account was also shaped by reviewing a set of unpublished minutes from meetings among the Reporters, their Advisers, and the ALI's Director.

Park reviews Lee, At America's Gates: Chinese Immigration during the Exclusion Era

Erika Lee, At America's Gates: Chinese Immigration during the Exclusion Era, 1882–1943 (University of North Carolina Press, 2003) is reviewed by John S. W. Park, University of California, Santa Barbara, in the Law and History Review. Park writes, in part:

"How did the Chinese exclusion laws affect the Chinese in America? And how did they transform the United States into a gatekeeping nation, in which immigration restriction—largely based on race and nationality—came to determine the very makeup of the nation and American national identity?" (6) To address these questions, Lee analyzed government records, Chinese-language newspapers, and the private records left by the Chinese themselves. She presents a compelling, readable narrative where she argues that the systems of control and exclusion developed during the Chinese Exclusion era have come to dominate immigration policy.

Efforts toward exclusion came from the West Coast, and many white leaders there were immigrants themselves from various parts of Europe. As "suspect whites," they found an expedient cause through which they could both protect the value of their labor and promote white supremacy. Soon after the Exclusion Act of 1882, these leaders controlled a new bureaucracy to stop Chinese immigration....

The second part of her book shows the impact of these laws and of their enforcement. Many who still attempted entry either avoided the authorities or lied to them. The Chinese smuggled themselves into the country, often across the Canadian and Mexican borders. Lee shows how the American government tried both diplomacy and policing, but ultimately, the complex, illegal methods of entry frequently relied on the cooperation of "corrupt immigration officials, and other government employees in China, the United States, and throughout the Americas" (193)....

[B]ecause so many relied on illegal methods of entry, the Chinese community in America was extremely fragile.


For the full review, click here.

Gross on Litigating Identity and Citizenship Among the "Little Races"

Ariela J. Gross, USC, has posted an abstract for an article forthcoming in the Law and History Review, 'Of Portuguese Origin': Litigating Identity and Citizenship Among the Little Races in Nineteenth-Century America. The article is not yet on-line, but Professor Gross's contact information can be found here. Here's the abstract:

The history of race in the nineteenth-century United States is often told as a story of black and white in the South, and white and Indian in the West, with little attention to the intersection between black and Indian.

This article explores the history of nineteenth-century America's little races -- racially ambiguous communities of African, Indian, and European origin up and down the Eastern seaboard. These communities came under increasing pressure in the years leading up to the Civil War and in its aftermath to fall on one side or the other of a black-white color line.

Drawing on trial records of cases litigating the racial identity of the Melungeons of Tennessee, the Croatans/Lumbee of North Carolina, and the Narragansett of Rhode Island, this article looks at the differing paths these three groups took in the face of Jim Crow: the Melungeons claiming whiteness; the Croatans/Lumbee asserting Indian identity and rejecting association with blacks; the Narragansett asserting Indian identity without rejecting their African origins. Members of these communities found that they could achieve full citizenship in the U.S. polity only to the extent that they abandoned their self-governance and distanced themselves from people of African descent.

Remembering International Women's Day

On this International Women's Day, it is a good time to remember that women have long fought for their rights,

(National Woman's Party protest outside the White House, 1917)

....and continue to do so.




Kuwait women's protest for the right to vote, 2005.







BBC Radio has excellent coverage of an International Women's Day protest in Iran, and it's suppression, here. Crooked Timber posts on Internatonal Women's Day in Iran, with many helpful links, here.

IntLawGrrls covers Japan's failure to address wartime crimes against women taken as sex slaves, here, also covered in today's New York Times, here. Look to IntLawGrrls for other news about women and international law.

Feminist Law Professors features economist and feminist Charlotte Perkins Gilman, here.

The United Nation's International Women's Day website is here.

How to look for silver linings? When I see a page like this in the New York Times -- an obituary page recognizing several men, and no women, which happens often -- I say to my boyfriend: look, more evidence that women outlive men! No women died recently!