More information, for those in the Bay Area:
Date: Wednesday, September 28
Time: 4:10 PM
Location: Chevron Auditorium, International House — 2299 Piedmont Avenue
Americans revere their Constitution. However, most of us are unaware how tumultuous and improbable the drafting and ratification processes were. As Benjamin Franklin keenly observed, any assembly of men bring with them "all their prejudices, their passions, their errors of opinion, their local interests and their selfish views." One need not deny that the Framers had good intentions in order to believe that they also had interests. Based on prodigious research and told largely through the voices of the participants, Michael Klarman's The Framers' Coup narrates how the Framers' clashing interests shaped the Constitution--and American history itself.Some quite extraordinary endorcements after the jump.
The Philadelphia convention could easily have been a failure, and the risk of collapse was always present. Had the convention dissolved, any number of adverse outcomes could have resulted, including civil war or a reversion to monarchy. Not only does Klarman capture the knife's-edge atmosphere of the convention, he populates his narrative with riveting and colorful stories: the rebellion of debtor farmers in Massachusetts; George Washington's uncertainty about whether to attend; Gunning Bedford's threat to turn to a European prince if the small states were denied equal representation in the Senate; slave staters' threats to take their marbles and go home if denied representation for their slaves; Hamilton's quasi-monarchist speech to the convention; and Patrick Henry's herculean efforts to defeat the Constitution in Virginia through demagoguery and conspiracy theories.
The Framers' Coup is more than a compendium of great stories, however, and the powerful arguments that feature throughout will reshape our understanding of the nation's founding. Simply put, the Constitutional Convention almost didn't happen, and once it happened, it almost failed. And, even after the convention succeeded, the Constitution it produced almost failed to be ratified. Just as importantly, the Constitution was hardly the product of philosophical reflections by brilliant, disinterested statesmen, but rather ordinary interest group politics. Multiple conflicting interests had a say, from creditors and debtors to city dwellers and backwoodsmen. The upper class overwhelmingly supported the Constitution; many working class colonists were more dubious. Slave states and nonslave states had different perspectives on how well the Constitution served their interests.
Ultimately, both the Constitution's content and its ratification process raise troubling questions about democratic legitimacy. The Federalists were eager to avoid full-fledged democratic deliberation over the Constitution, and the document that was ratified was stacked in favor of their preferences. And in terms of substance, the Constitution was a significant departure from the more democratic state constitutions of the 1770s. Definitive and authoritative, The Framers' Coup explains why the Framers preferred such a constitution and how they managed to persuade the country to adopt it. We have lived with the consequences, both positive and negative, ever since.
Read on here.In 2016, legal history is a capacious field – one with a catholic view of what counts aslaw and a willingness to find legal significance in a wide range of places. Katrina Jagodinsky’s Legal Codes and Talking Trees challenges legal historians to be even more inclusive, especially in the voices we seek to hear and the sources we mine. By pairing underused state and territorial court records with oral histories, legends, local newspaper records, and intricate genealogical research, Jagodinsky offers an all-too-rare glimpse of the experiences and perspectives of Indigenous women in the nineteenth and early twentieth centuries, as they navigated formal legal systems that were not their own.
|Stephanie McCurry (Columbia U)|
In the early decades of the twentieth century, business leaders condemned civil liberties as masks for subversive activity, while labor sympathizers denounced the courts as shills for industrial interests. But by the Second World War, prominent figures in both camps celebrated the judiciary for protecting freedom of speech. In this strikingly original history, Laura Weinrib illustrates how a surprising coalition of lawyers and activists made judicial enforcement of the Bill of Rights a defining feature of American democracy.Samuel Moyn's review in the Wall Street Journal is here. And here are two endorsements:
The Taming of Free Speech traces our understanding of civil liberties to conflict between 1910 and 1940 over workers’ right to strike. As self-proclaimed partisans in the class war, the founders of the American Civil Liberties Union promoted a bold vision of free speech that encompassed unrestricted picketing and boycotts. Over time, however, they subdued their rhetoric to attract adherents and prevail in court. At the height of the New Deal, many liberals opposed the ACLU’s litigation strategy, fearing it would legitimize a judiciary they deemed too friendly to corporations and too hostile to the administrative state. Conversely, conservatives eager to insulate industry from government regulation pivoted to embrace civil liberties, despite their radical roots. The resulting transformation in constitutional jurisprudence—often understood as a triumph for the Left—was in fact a calculated bargain.
America’s civil liberties compromise saved the courts from New Deal attack and secured free speech for labor radicals and businesses alike. Ever since, competing groups have clashed in the arena of ideas, shielded by the First Amendment.
In 1973, a group of California lawyers formed a non-profit, public-interest legal foundation dedicated to defending conservative principles in court. Calling themselves the Pacific Legal Foundation, they declared war on the U.S. regulatory state--the sets of rules, legal precedents, and bureaucratic processes that govern the way Americans do business. Believing that the growing size and complexity of government regulations threatened U.S. economy and infringed on property rights, Pacific Legal Foundation began to file a series of lawsuits challenging the government's power to plan the use of private land or protect environmental qualities. By the end of the decade, they had been joined in this effort by spin-off legal foundations across the country.TOC after the jump.
The Other Rights Revolution explains how a little-known collection of lawyers and politicians--with some help from angry property owners and bulldozer-driving Sagebrush Rebels--tried to bring liberal government to heel in the final decades of the twentieth century. Decker demonstrates how legal and constitutional battles over property rights, preservation, and the environment helped to shape the political ideas and policy agendas of modern conservatism. By uncovering the history--including the regionally distinctive experiences of the American West--behind the conservative mobilization in the courts, Decker offers a new interpretation of the Reagan-era right.
The Chauncey Postdoctoral Fellowships are up to three positions funded by the Brady-Johnson Program in Grand Strategy for one year renewable for one additional year. We seek to attract outstanding junior scholars from around the globe whose work addresses questions of statecraft and grand strategy and demonstrates excellence in one of a range of academic disciplines and methodologies.
Postdoctoral fellows must have completed their PhD degree to begin the fellowship. They are expected to use their time at Yale to conduct original research and prepare manuscripts for publication. Working with an active academic community of postdoctoral and predoctoral fellows, as well as Yale faculty in history, political science, and other disciplines, postdoctoral fellows may examine a variety of areas of statecraft and grand strategy, including issues of security, economic development, environmental sustainability, global health, and human dignity.
A member of the Yale faculty will serve as a mentor during the fellowship and will meet on a regular basis with the fellow. Postdoctoral fellows may teach small seminars if desired. They participate regularly in research colloquia on campus and are granted opportunities to present their work. Postdoctoral fellows are expected to remain in residence through the duration of their fellowship and contribute to the intellectual life of the Grand Strategy Program and International Security Studies by participating in its activities and development.
Fellows will be expected to conduct their own research and to teach at least one course on a subject relevant to grand strategy during each year in which they hold the fellowship. The stipend will be at least $50,000.The announcement lists Law and Legal History as one of the search's "primary categories."
International law burst on the scene as a new field in the late nineteenth century. Where did it come from? Rage for Order finds the origins of international law in empires—especially in the British Empire’s sprawling efforts to refashion the imperial constitution and use it to order the world in the early part of that century.
Lauren Benton and Lisa Ford uncover the lost history of Britain’s global empire of law in colonial conflicts and bureaucratic dispatches rather than legal treatises and case law. Tracing constitutional politics around the world, Rage for Order shows that attempts to refashion the British imperial constitution touched on all the controversial issues of the day, from slavery to revolution. Scandals in turbulent colonies targeted petty despots and augmented the power of the Crown to intervene in the administration of justice. Campaigns to police piracy and slave trading linked British interests to the stability of politically fragmented regions. Dull bureaucrats dominated legal reform, but they did not act in isolation. Indigenous peoples, slaves, convicts, merchants, and sailors all scrambled to play a part in reordering the empire and the world beyond it. Yet, through it all, legal reform focused on promoting order, not advancing human rights or charting liberalism.
Rage for Order maps a formative phase in world history when imperial, not international, law anchored visions of global order. This sweeping story changes the way we think about the legacy of the British Empire and the meaning of international law today.
How shall we “come to terms” with the complex reality of governance in the European Union? If we regard this challenge in strictly legal terms and, more importantly, give the pronouncements of the European Court of Justice (ECJ) and sympathetic legal commentators the dispositive role in our determination, then the response is clear: The EU is a “constitutional” level of governance in its own right, with the EU treaties serving as a “constitutional charter of a Community based on the rule of law”. There is another sense of “coming to terms”, however, that is less ECJ-centric. It looks beyond the nominal and legal and moves into the sociological and historical domains. It recognizes that “coming to terms” must focus on the core disconnect at the heart of European integration, in which regulatory power has undoubtedly shifted to the supranational level but the EU lacks autonomous democratic and constitutional legitimacy to support the exercise of that power in its own right. The EU legal order clearly enjoys a legal, technocratic and functional legitimacy sufficient to support autonomous regulatory power of a uniquely powerful supranational type. The problem with the nominal constitutionalism of the ECJ and legal commentators, however, is that it proceeds “as if” the EU possesses robust democratic and constitution legitimacy in its own right, in defiance of the EU’s actual socio-historical character. Two features of EU public law — nationally grounded resource mobilization and nationally mediated legitimacy — point strongly to the EU’s character as ultimately derivative, delegated, and “administrative”, operating as a regulatory “agent” of democratic and constitutional “principals” who remain largely national. These features of EU governance focus our attention on what we can call “the power-legitimacy nexus”; that is, the linkage between the nature of the legitimacy enjoyed by a legal or political order (legal, technocratic, functional, or robustly democratic and constitutional) and the scope of power that the legal order can then successfully exercise. Using a comparative administrative law perspective, this chapter argues that several judicial doctrines of the ECJ — relating to “legal basis”, “subsidiarity” and “supremacy”, among others — should be reformed to bring them more fully into line with the EU’s actual socio-historical character as an instance of supranational administrative governance. Rather than indulging in an “as if” constitutionalism as the ECJ has done, the public law of European integration should confront the EU as it actually is. In “coming to terms” with this reality, we must do more than simply label it; rather, we must also understand how European law, both national and supranational, should evolve to accommodate its underlying socio-historical disconnect and the contradictions it raises.
This book integrates women’s history and legal studies within the broader context of modern European history in the late nineteenth and twentieth centuries. Sixteen contributions from fourteen countries explore the ways in which the law contributes to the social construction of gender. They analyze questions of family law and international law and highlight the politics of gender in the legal professions in a variety of historical, social and national settings, including Eastern, Southern, Western, Northern and Central Europe. Focusing on different legal cultures, they show us the similarities and differences in the ways the law has shaped the contours of women and men’s lives in powerful ways. They also show how women have used legal knowledge to struggle for their equal rights on the national and transnational level. The chapters address the interconnectedness of the history of feminism, legislative reforms, and women’s citizenship, and build a foundation for a comparative vision of women’s legal history in modern Europe.TOC here.
well-made clothes, linens, and wares of ordinary households. Such items were indicators of one’s station in life in a society accustomed to reading visible signs of rank. In a world without banking, household goods became valuable commodities that often substituted for hard currency. Pawnbrokers and resellers sprang up, helping to push these goods into circulation. Simultaneously, a harshly coercive legal system developed to ensure that debtors paid their due.
Focusing on the Mediterranean cities of Marseille and Lucca, Legal Plunder explores how the newfound wealth embodied in household goods shaped the beginnings of a modern consumer economy in late medieval Europe. The vigorous trade in goods that grew up in the fourteenth and fifteenth centuries entangled households in complex relationships of credit and debt, and one of the most common activities of law courts during the period was debt recovery. Sergeants of the law were empowered to march into debtors’ homes and seize belongings equal in value to the debt owed. These officials were agents of a predatory economy, cogs in a political machinery of state-sponsored plunder.
A few blurbs:As Daniel Smail shows, the records of medieval European law courts offer some of the most vivid descriptions of material culture in this period, providing insights into the lives of men and women on the cusp of modern capitalism. Then as now, money and value were implicated in questions of power and patterns of violence.
“Full of unexpected insights, this exciting and innovative social history brings the late Middle Ages to life through everyday objects that served as the basis of an emotional package of vanity, optimism, humiliation, and violence surrounding debt seizures.”—Paul Freedman, Yale University
“A terrific book, rich with well-told anecdotes as well as smart analytical interventions. Smail makes ordinary people more than mere onlookers or victims of the long so-called commercial revolution of Europe.”—Martha HowellMore information is available here.
Congress has recently authorized military commissions to try individuals for domestic-law offenses—such as providing material support to terrorism, targeting U.S. forces, and conspiring to commit law-of-war offenses—in addition to offenses against the international laws of war. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution guarantees. The constitutionality of such an abrogation of Article III’s criminal-trial guarantees has been debated in many of the Nation’s wars, without clear resolution. The Article III question is now the subject of a potentially landmark case, al Bahlul v. United States, that the Supreme Court may consider as early as this Term.
In the rare cases where the Court has recognized exceptions to Article III’s criminal trial protections, it has almost invariably invoked functional and normative justifications; as this Article explains, however, the government has not offered any such justifications that would be sufficient to justify denial of the independent judge and jury that Article III guarantees when adjudicating domestic-law offenses, even in wartime. The government and judicial defenders of military tribunals thus must rely almost exclusively upon historical claims to defend the constitutionality of using commissions. This Article addresses one of the government’s central historical claims—namely, that the Constitution should be understood to have preserved, rather than to have modified, the federal government’s power to “carry on war as it had been carried on during the Revolution.” According to this argument, the Constitution was ratified against, and should be presumed not to have called into question, a purported “backdrop” of military criminal adjudication of offenses that were not violations of the international laws of war: court-martial proceedings, authorized by the Second Continental Congress and approved by General George Washington, against both spies and disloyal civilians who provided aid to the British.
The Article provides the first comprehensive account of those Revolutionary War precedents, how they were understood in the decades just after the Constitution was ratified, and the ways in which they have been invoked as authority, and mischaracterized, in later wars. It demonstrates that the age-old received wisdom about those precedents is almost entirely mistaken, and that they do not offer a basis for recognizing a new Article III exception for military adjudication of war-related domestic-law offenses.
The pre-constitutional history does, however, include one conspicuous aberration —a
1778 congressional resolution authorizing the trial by court-martial of civilians who provided a particular kind of aid to the British, which General Washington relied upon in 1780 as authority to convene a court-martial to try Joshua Hett Smith for assisting Benedict Arnold in the plot to capture West Point. In the Article, I argue that the Smith case—a striking deviation from Washington’s otherwise consistent conduct—should not be accorded much, if any, weight in interpreting Article III or in crafting exceptions to its criminal trial guarantees.
Joshua Hett Smith House, Treason Hill (wiki)
More broadly, this Article—together with another article that examines the government’s alternative reliance upon a series of military tribunal precedents in the Civil War and World War II (most importantly, the 1865 trial of the individuals accused of conspiring with John Wilkes Booth to kill Abraham Lincoln)—illustrates how a complex history can be misunderstood, and distorted, in the course of constitutional interpretation, particularly on questions of war powers.
Cohabitation is a reality for a majority of Americans. Non-monogamous relationships are increasing over time, yet having a sexual relationship outside of marriage is illegal in a surprising number of states. Conservative groups or politicians also occasionally champion these laws, ensuring their longevity. This enduring conflict of values between the majority and a vocal minority is part of a cultural trend that has existed for centuries. From colonial times to the present, adultery and fornication laws have gone from being the most prolifically enforced to being virtually ignored by prosecutors and held to be unconstitutional invasions of privacy by judges. This Article traces that progression by looking at how American culture has changed over time, including judicial views on and changing evidentiary standards for the crimes of adultery and fornication, both of which have led to fewer prosecutions. The resulting picture indicates why these laws are no longer regularly enforced and why they still remain part of the criminal codes in several states, regardless of their uncertain constitutional pedigree.The article should be read in conjunction with Elizabeth Pleck’s Not Just Roommates, perhaps while listening to this.
At the height of the Cold War in the late 1950s and early 1960s, a decision-making technique called Systems Analysis was perfected and began to be applied broadly from matters of national defense strategy to government policy to criminal justice. The turn to systems analysis has been deeply consequential in the field of law and public policy, and is essentially responsible for the dominant role that cost-benefit analysis plays today throughout the administrative state. A close examination of the attempt to extend the use of systems models from the narrow military domain to the broader public policy context, however, reveals a recurring problem centered on the choice of scope of the analysis. I call this “The Systems Fallacy” and I demonstrate it in this essay.November 7, 2016
Mark Tushnet, Mark Graber, James Read, Jared Goldstein, Vicki Jackson, and Alison La Croix are among the contributors who consider a strain of federalism stretching from the framing of the Constitution to the state of Texas’'s most recent threat to secede from the United States. The authors look at the theory and practice of nullification and secession here and abroad, discussing how contemporary advocates use the text and history of the Constitution to make their cases, and how very different texts and histories influence such movements outside of the United States—in Scotland, for instance, or Catalonia, or Quebec, or even England vis-à-vis the European Union. Together these essays provide a nuanced account of the practical and philosophical implications of a concept that has marked America's troubled times, from the build-up to the Civil War to the struggle over civil rights to battles over the Second Amendment and Obamacare.Subscribers to Project Muse may access full content here.