Yearly Archives: 2019

The Hunt as History and As Game

Dec 9, 2019 Kunal ParkerAdd a Comment

Most American law students are familiar with Pierson v. Post, a case that has been a fixture in American property law casebooks for well over half a century. Decided by the New York Supreme Court in 1805, Pierson v. Post is used in property law courses to illustrate the question of how property rights arise in wild animals. Today, it is frequently taught alongside cases exploring how property rights arise in contemporary contexts such as ground water, human genetic materials, baseballs hit into stadiums crowded with fans, and the like. The facts of Pierson are simple and memorable: Post is in pursuit of a fox on a beach in Long Island when Pierson interrupts the hunt and kills the fox. Has Post acquired a property interest in the fox by virtue of the fact of being engaged in pursuit of it? The New York court deciding the case canvassed a range of European authorities going back to Justinian. The majority ruled that no property rights could arise in a wild animal unless it was captured. The rule it advanced has the virtue of clarity. But it risks being unfair to Post, particularly if he was at the point of killing the fox and/or if his labors had made it easier for Pierson to kill it. The dissent, in a witty opinion by Judge (and future U.S. Supreme Court Justice) Henry Livingston, would have allowed for property rights in the fox to arise through something short of actual capture, namely, imminent taking. The dissent’s solution might be fairer to Post, perhaps, but specifying what counts as an imminent taking is no easy task, entailing more work for lawyers and judges.

In my own property law course, Pierson v. Post has appeared either at the beginning or the end, but in neither instance have I devoted more than half an hour of a single class session to it. I teach Pierson v. Post because it neatly illustrates the difference between clear rules and blurry standards, but also because it is a “classic.” I do not want my students to leave the course without having a glancing familiarity with something they are “supposed” to have run into in law school.

What has been a minor pedagogical experience for me and my students has been, it is fair to conclude, an obsession for Angela Fernandez. She has spent a decade working on her new book, Pierson v. Post: The Hunt for the Fox, and has recently authored a “rewrite” of the Pierson v. Post dissent in which she adopts the style of someone writing in 1805 but advances feminist and animal rights sensibilities.¹ My review will cover both the book and the “rewritten” dissent and will set them in relationship to one another.

Fernandez offers us a history of Pierson v. Post backed by impressive archival research. She shows how our simple lawyerly rendering of Pierson as a choice between different rule regimes obscures the complex literary, social, and intellectual universes that shed light on, even as they are illuminated by, the case. However, Fernandez follows no linear narrative, advances no neat argument, offers no simple “takeaway.” Instead, she picks up on the different leads the case presents and follows each into different archives. The result is a book without a stable center. The reader is offered exhaustive treatments of the following, each of which speak to some aspect of the case: the ribaldrous masculinist culture of literary games and theater engaged in by Anglo-American lawyers in the early nineteenth century; the practices of hunting foxes and whales; the lives of the Pierson v. Post litigants, their lawyers, and the judges; the relations between Native Americans and settlers in early nineteenth century New York; different legal characterizations of land and animals; the appropriation of Pierson v. Post in nineteenth century treatises and twentieth century casebooks; and so on. Fernandez even gives us photographs of the beach on Long Island where that famous fox hunt took place over two hundred years ago.²

What is one to make of this profusion of different tracks that take the reader to so many different places? Fernandez tells us that she embraces the methodology of “legal archaeology” pioneered by the legal historian Brian Simpson, but hers is no mere uncovering of buried objects. (P. 42). Instead, she is engaged in a fox hunt.  Towards the end of the book, Fernandez confesses that Pierson v. Post is “so unstable that it is a mistake to approach it as a straightforward legal text; it ought instead to be approached as a slippery and wily fox . . . . One relies on it . . . at one’s peril.” (P. 327). The book’s subtitle—“The Hunt for the Fox”—refers, then, to two fox hunts—Post’s hunt for the fox on the beach in Long Island and Fernandez’s own hunt for the fox-like dispute that it gave rise to. Fernandez chases Pierson v. Post wherever it will take her, from the New York archives to the plays of Shakespeare to the beaches of Long Island to the casebooks of the twentieth century and beyond.  Like the fox, Pierson is wily, but its huntress refuses to give up. The parallels between the book’s structure (that of following Pierson wherever it will go) and the Post’s hunt for the fox among the scrub of a Long Island beach are, it must be emphasized, the genius of Fernandez’ book.

In the remainder of this review, I wish to highlight a particular kind of intellectual dilemma that is raised, in my mind, in the way Fernandez’s book on Pierson v. Post relates to her “rewritten” dissent in the case.

Apart from its structure, to my mind, the most important contribution of Fernandez’s book is the way it foregrounds the plurality of what law is. We might think of law as giving us rules to solve problems.  In one sense, it is that. Fernandez would surely agree. Pierson is, after all, a case that presents us with different rules for deciding when wild animals become private property. However, in the book, Fernandez shows brilliantly that law has been—and continues to be—a great deal more. Specifically, she highlights the many ways in which the law relates to, produces, and offers up things that are not instrumental in any simple sense, things that constitute a kind of excess, things that refer back to themselves. Here I have in mind Fernandez’s exploration of the famous Livingston dissent in the Pierson case that takes us into the early nineteenth century masculinist legal culture of literary allusion, games, and theater and, later in the book, her investigation of the world in which law is the writing of treatises and case books all relating to and revising one another. The law, as she describes it for us, is these things—all of them excessive or self-referential in important respects—as much as it is about solving any particular dispute or problem.  I agree entirely.

With this as background, I want to suggest that Fernandez’s “rewritten” dissent in Pierson v. Post—her act of “updating” the case to reflect her feminist and animal rights sensibilities in the voice and tone of someone writing in 1805—is yet another instantiation of this self-referential, excessive, allusive, theatrical or game-like legal tradition she explores in such depth.  What is the point of “rewriting” a dissent to a two hundred-year old opinion, one might well ask? Why not just ignore the opinion, or criticize it, or declare it to be unjust or wrong? Why go through the laborious exercise of “rewriting” it? What is this if not a literary exercise—another act of self-referential theater or a game–in which the object points to itself as much as to the new politics it seeks to perform?

What is the relationship between this kind of self-referential legal-literary exercise with the conventional disciplinary historical one of situating Pierson v. Post “in context”?  One of Fernandez’s stated goals in the book is to change our understanding of the case itself. As she herself puts it: “My intention in this book is to disrupt any previously dominant understanding of Pierson by changing the way we think about it.” (P. 326).  We know an enormous amount about Pierson v. Post thanks to Fernandez’s attempt to track down everything related to it. But we do not really get a clear sense of how her hunt for details and the consequent massive building up of context relates to the self-referential, literary, theatrical, game-like quality of the law reflected in the original opinions in Pierson v. Post, the subsequent appropriation of the case by legal writers, and in Fernandez’s own decision to “rewrite” the Pierson dissent after learning all that seems humanly possible to learn about it.  How does one historicize a game? Is history the best way of understanding a game? Is playing the game a better way?

Fernandez does both. On the one hand, she historicizes the games of law: the book can be read as history. On the other, as revealed in the book and the “rewritten” dissent, Fernandez plays the games of law herself, both in structuring her book like a fox hunt (itself a sport) and following her prey wherever it takes her and in artfully “rewriting” the Pierson v. Post dissent to transpose her political sensibilities into the language of the early nineteenth century. She offers novel ways of doing history and playing with and in history. For these reasons, her work merits our attention.

A Diplomatic Nightmare and the Growth of American Sovereignty

Nov 11, 2019 Sarah Barringer GordonAdd a Comment

In an era when refugees prize crossing American borders – and when political debates turn on whether to build a “beautiful wall” to stop them – we learn in Under the Starry Flag about a time that the United States lacked the power it has today to alter the citizenship of migrants. Lucy Salyer’s fine monograph tells a story of Irish emigration to the U.S. in British and American law and politics. We learn that the great migrations across the Atlantic in the nineteenth century occurred in something of a legal vacuum. Nobody was quite sure what the consequences of such migration would be. Even if migrants naturalized as American citizens, Britain and other European powers denied that their former subjects had severed their obligations to the homeland. If migrants returned to visit family, they were liable to arrest for failure to serve in the military, for example. If they returned and sought to foment rebellion, they were subject to prosecution for treason. Most people didn’t know this; others learned the hard way.

The Irish immigrants studied here were caught in the crosshairs.  They already objected strenuously to the discrimination they suffered at the hands of American snobs (think, “no Irish need apply”) in the nineteenth century. They dreamed of sticking it to elite Bostonians and New Yorkers. But most of all, they hated the English. They became entangled in transatlantic diplomatic crises that they milked for publicity and personal celebrity. They were unlikely heroes, untutored in the many ways that their actions had crossed tacit boundaries and stirred already troubled waters. But they were stubborn, brave (for the most part), and idealistic. The reader is forced into grudging admiration.

It all started with great foolhardiness. A painfully small (40 men) group of Irish Americans – convinced of their prowess, apparently, by their experience fighting for the Union in the U.S. Civil War as well as news of a (quickly squashed) Irish uprising led by a group known as the Fenians in early 1867 – persuaded themselves that they could liberate Ireland from the cruel oppression of the British. They set sail in a rickety boat and disembarked in Ireland far from their original target, only to be arrested almost immediately. The British government and its emissaries in Ireland were in no mood to treat gently this rag-tag group that brought rifles and revolutionary rhetoric back with them to Ireland. The Irish had made trouble for their overlords for centuries, who in turn had become seasoned and remorseless oppressors, economically (75% of rural Irish lived in dire poverty), culturally (English-language only national schools), and of course legally. As Salyer puts it, British officials had no qualms about prosecuting Irish Americans for treason, because “corrupt American influences” underlay the most recent trouble, the Fenian project of the 1860s. (P. 47.) To eradicate Fenianism once and for all, American emigrants had to pay the price.

Therein lay the rub. Despite their arrogance and long-standing annoyance at “thin-skinned” Americans and their demands to be recognized as a sovereign nation among others, Britons were impressed that the U.S. had survived its devastating Civil War.  Now American diplomats demanded Britain pay for losses inflicted by the notorious British-built Confederate raider C.S.S. Alabama. The beleaguered (and whiny) U.S. Minister Charles Francis Adams was loath to add American Fenians to his list of diplomatic problems, but he was forced to by the influence of Irish immigrants in American politics, and their effective cultivation of support in letters home that complained of wretched conditions and solitary confinement and were reprinted in the popular press. The Irish-born defendant John Warren brilliantly turned his trial into a showcase for the suffering of an American patriot at the hands of an empire of torturers.³ The British countered that the “excitable” Americans should forgive and forget the Alabama and leave punishment of the Fenians to the Queen’s justice. (Pp. 57, 174.)

Relations between the two countries deteriorated dangerously. Cooling tempers to avoid war in the late 1860s required all of Adams’s considerable savoir faire. In addition, the question whether emigration to America and naturalization there resulted in “expatriation” – that is, the end of obligation to one sovereign and the acquisition of a new citizenship under a different sovereign – became the question du jour for an emerging trend in legal thought and advocacy. Now, German immigrant Francis Lieber (best known to legal scholars today as the author of Lincoln’s Code of War) and other international “publicists” entered the picture. They argued that the old ways of seeing subjecthood as unchangeable were hopelessly antiquated because they rested on feudal notions of the divine right of kings. The modern era, by contrast, was governed by vast commercial networks that were made possible by nation-states. “Global capitalism and global migration” went hand-in-glove with new ideas of sovereignty, “smoothing and broadening the paths of commerce.” (Pp.180-81.) International law in the productive sense of the term was possible only by adapting to the new reality.

After many fits and starts that featured repeated and difficult negotiations between American and British and failed attempts to pass legislation on both sides, as well as constant rabble-rousing and political activism from Warren and his allies, the question of a right to expatriation was resolved in 1870 by legislation on both sides and a treaty. For the first time, Britain recognized the right to leave, as well as the possibility of naturalization for immigrants. At the same time, both sides hardened the boundaries, specifying that a married woman automatically took the citizenship of her husband. Equally important, Americans scrambled to explain how it was that Irish and German and Italian immigrants could be naturalized, but Chinese and persons of color had no such prospects. For their part, American Fenians were key supporters of the “white man’s government” that emerged from their otherwise unsuccessful foray into freedom-fighting. (P. 141.)

Salyer acknowledges that one might be tempted to conclude that victory for the Fenians in America means her story has a happy ending. The rest of the nineteenth century, however, saw increasingly virulent anti-Chinese activism and legislation, experiments in expulsion of communists in the twentieth century, and all kinds of shenanigans in the twenty-first. The Fenian legacy has been tarnished, pretty much from the start.

But the murkiness of the morals behind the story should not obscure the importance of Salyer’s work. Her remarkable deftness lies in crafting a page-turner that nonetheless yields deep insights into how the law of immigration affected diplomacy, politics, and especially the law of citizenship. The characters in Under the Starry Flag are painted with such fine attention to detail and telling attributes, that the reader is drawn in. The lessons of the tale – including the power of a new sovereign to supplant the obligations due to the former one, and the role of commerce in smoothing the paths of emigrants – make great sense as a result.

Scholars of capitalism, transatlantic and global migration, the changing face of white supremacy, and more, will find much to admire here. Students will find the text manageable thanks to Salyer’s historical craft. And for immigration lawyers, who grapple with the ways that the law of citizenship and migration had been under-theorized for the entire first century of American national history, Salyer’s work enriches and complicates our earlier understanding. Like Gerald Neuman’s now classic The Lost Century of American Immigration Law, Salyer challenges scholars to take a new perspective. This time, however, the focus is not just on U.S. laws of immigration, but the ways that claims of a right to expatriate posed uncomfortable questions for the British Empire.  Ireland – the first colony of that empire – was at the center of the trouble, and the former colonies that had become a favored destination of the suffering Irish poured flames on the smoldering embers.

Less than 30 years later, the United States embarked on its own inaugural colonization project in Puerto Rico – now the world’s oldest colony. The many questions involving citizenship raised by the accession of the island and its inhabitants have also yielded fine work in legal history.⁴ Students of British and American legal history are teaching us that frequently the real action is at the periphery. This lesson is valuable for anyone studying the shifting contours of citizenship, as well as the role of commerce in the contours of empire.

Plausible Crime Stories: The Legal History of Sex Offences in Mandate Palestine

Oct 4, 2019 Binyamin BlumAdd a Comment

As a procedural field, evidence law is often portrayed as technical and even arbitrary; the handmaid of substantive law. Orna Alyagon-Darr’s new book, Plausible Crime Stories: The Legal History of Sex Offences in Mandate Palestine, dispels this notion, highlighting the ways in which evidence law—and procedure more generally—provides a reflection of the societies in which they operate, and may therefore serve as a rich source of social history. Precisely because procedural law is often depicted as morally and culturally neutral, it offers inadvertent clues to the thought process of various legal actors which substantive legal fields do not.⁵ In this book Alyagon-Darr, the author of Marks of an Absolute Witch (a study of witchcraft trials in sixteenth to eighteenth century England, the rules of evidence that governed them, and the social context these rules convey), turns her keen eye for fascinating and unusual details to another period and place: the interwar Middle East.

Plausible Crime Stories offers a fascinating analysis of the colonial archive of sex offenses in the Middle East during the interwar period. Based on 147 cases decided in the Haifa District between the years 1933-1948, Alyagon-Darr recounts the social and political histories of sex crimes in Mandate Palestine. To provide a richer and broader context, Alyagon-Darr also skillfully employs media coverage, in English, Arabic and Hebrew, to tease out public opinion towards such criminality within each of Palestine’s communities.

To examine “the meeting point of culture and law within the process of proof,” the framing principle at the center of Alyagon-Darr’s analysis is “plausibility.” (P. 6.) By focusing on plausibility, she proposes that we use legal and non-legal texts to “detect indicators of socially embedded elements.” (P. 6). In other words, she suggests that by reading legal texts and media accounts about the law critically we might uncover the underlying assumptions of the authors and the audiences for whom they wrote. These underlying assumptions are only rarely made explicit because authors found them unnecessary to articulate, making them far more telling of their world views.

The book begins with a 1944 case of attempted rape. In her husband’s absence, Nafsieh was sleeping with her baby on the roof of their family house when the defendant—her neighbor Nimr—appeared and allegedly tried to rape her. Despite the physical evidence of her torn shirt, her immediate report of the crime, and family members’ reports that they were awoken by a loud cry, British judge Curry found Nafsieh’s account “implausible”: first, he found it implausible that a woman would sleep alone on the roof of her own house, even on a hot summer night, in the absence of her husband; second, he found it “strange for a man in the middle of the night, to come commit an indecent act upon a woman unless there has been some friendship or encouragement to hope that he would not be badly received.” (P. 1.) Judge Curry found it far more plausible that Nafsieh would invite a neighbor to have sex with her on the roof of her husband’s family home in the presence of her baby; moreover, he found it plausible that when discovered, she would concoct rape allegations to protect her honor. The book portrays many such incidents, highlighting the various prisms mediating reality as perceived by legal and non-legal actors.

Readers will recognize many of the tropes analyzed in Alyagon-Darr’s accounts from feminist critiques of both substantive and evidentiary common law doctrines pertaining to sex crimes: the notorious corroboration requirement, the requirement of “resistance to the utmost”—and its implication, namely that intercourse simply cannot be achieved by a man of average strength against the will of an average woman. Alyagon-Darr’s analysis, however, brings the colonial context to bear on these issues, underlining the intersectionality of gender, sexual orientation, race and nationalism (to name a few). Mandate Palestine provides a particularly rich case study, as it allows for both the study of self-representation and the representation of others within Palestine’s various communities. For example, Alyagon-Darr analyzes Palestine’s distinctive statutory treatment of sodomy (which criminalized non-consensual penetration), as opposed to “offenses against the order of nature” (which penalized both parties in consensual, unnatural sexual relations). Alyagon-Darr meticulously traces the origins of this legislative distinction, contrasting between both the metropole and colony and between the British colonies themselves, to illustrate how perceptions of Middle Eastern sexuality informed such distinctive criminal provisions.

Beyond analyzing the distinctiveness of Palestine’s law in the books, Alyagon-Darr goes a step further in exploring the law in action: for example, she shows how in practice, “unnatural offenses” were typically only prosecuted against Arab defendants in cases where the authorities were forced to intervene, and typically in instances of power imbalances between the parties involved (be they physical, mental, or economical). Her explanation, once again, relates to plausibility: the notion that two men could share an emotional bond that would lead to homosexual relations, and that a man would voluntarily consent to penetration, was simply unfathomable. Additional facts had to be assumed for such a story to become conceivable: typically, the cases prosecuted involved an older and more powerful party, who exchanged money for sex. In crafting their defenses, litigants conformed to these judicial perceptions and tailored their stories accordingly, even when the record suggests that the relations were clearly consensual. In some cases Alyagon-Darr is even able to trace the changes that occurred in the defendant’s account from the moment they were caught until they stood trial, to conform with judicial and social expectations. In another chapter Alyagon-Darr demonstrates how perceptions concerning the plausibility of inter-communal intimate relations—particularly between Arab men and Jewish women—shaped judicial approaches to such cases, and the stories told by criminal defendants accused of crimes such as statutory rape: such relationships could only be deemed plausible when the Jewish girl in question was from a marginal group or a broken home.

Alyagon-Darr’s fascinating study is beautifully written, displaying keen attention to detail and sensitivity to the highly contentious subject matter. It is highly recommended for anyone interested in the history of sex crimes, the cultural history of legal procedure, or the complex relationship between law and colonialism.

New Approaches to the History of Originalism

Sep 12, 2019 Christopher W. SchmidtAdd a Comment

Law and History Review’s recently published symposium, Originalism and Legal History: Rethinking the Special Relationship, offers a fascinating collection of articles, some by familiar commentators on constitutional originalism, some by newer voices. In the former category are Bernadette Meyler’s powerful critique of the Supreme Court’s reading of the history of the Sixth Amendment’s Confrontation Clause; Saul Cornell’s challenge to originalists to meet the standards of a“genuinely historical approach to reading Founding Era texts that draws on the best interdisciplinary methods available”;⁶ William Baude and Stephen E. Sachs’s defense of originalist analysis as “ordinary lawyer’s work,” distinct from and more limited than the historian’s task of understanding the past;⁷ and Logan Sawyer’s account of the role that academic historians played in the rise of modern originalism in the 1970s and 1980s.

The symposium also includes a number of contributions from scholars who are newer to the scene. Lindsay M. Chervinsky examines George Washington’s understanding of executive authority, as revealed in newly available writings by the first president. Michael Douma explores the history surrounding two early Dutch translations of the United States Constitution. Aaron Hall considers how participants in mid-nineteenth-century debates over slavery turned to the history of the Founding as authority for their positions. And Paul Baumgardner looks to the history of law schools in the 1980s to trace the foundations of modern originalism rise to prominence in the legal academy. The symposium issue also includes Kevin Arlyck’s illuminating review of Jonathan Gienapp’s important new book, The Second Creation: Fixing the American Constitution in the Founding Era.

Although this latest round of contributions on the history and theory of constitutional originalism offers an array of insights and provocations that merit more attention, in this review essay I focus on the fresh perspective on the history of originalism offered in the articles by Aaron Hall and Paul Baumgardner. Building on the work of Robert Post and Reva Siegel,⁸ Jamal Greene,⁹ and others,¹⁰ they explore the genealogy of originalism as a phenomenon not only of legal theory but of American cultural and political history. Side-stepping the issues that have dominated discussions about originalism in recent decades—debates about the merits of originalism as a theory of constitutional interpretation, about whether originalist analysis and historical inquiry are reconcilable, about the original meaning of particular constitutional provisions—Hall and Baumgardner instead focus on how this particular theory has become such a dominant presence in American life. Central to this line of scholarship is the close attention they give to how developments outside the courts made possible the success of originalism inside the courts.

In Originalism and the Academy in Exile, Baumgardner, a Ph.D. candidate in Politics at Princeton University, presents the rise of originalism as a story of legal academic politics. He argues that the early 1980s—a time when “originalist scholars and scholarship held marginal and dubious status in the American legal academy”¹¹—was in fact a seminal moment in the emergence of modern originalism. Drawing on interviews he conducted with legal scholars involved in the academic battles of the 1980s, along with archival and published sources, Baumgardner describes legal education in the 1980s as a period of expansion, experimentation, and uncertainty. Faculty at elite law schools were becoming more interested in interdisciplinary scholarship, with Critical Legal Studies riling the waters on the ideological left and law-and-economics gaining stature among more conservative scholars. Within this increasingly dynamic world of the legal academy, there was little space, however, for the early advocates of originalism as a theory of constitutional interpretation. The pioneers of originalism in the 1970s and early 1980s generally worked outside the legal academy or on its fringes. Among mainstream legal scholars, most of the attention originalism arguments received came in the form of debunking efforts. Whereas Critical Legal Studies and law-and-economics were home-grown products, conceptualized and cultivated within the academy, originalism had to be outsourced.

The key player in Baumgardner’s story was the Department of Justice under the leadership of Attorney General Edwin Meese. In a speech before the American Bar Association, Meese declared advancing “a Jurisprudence of Original Intention” the official policy of the Justice Department. (P. 797.) “In the cases we file and those we join as amicus, we will endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment.” (P. 797.) The Justice Department, according to Gary Lawson, who served in the DOJ in the mid-1980s, was an “academy in exile” for originalism in its formative years. (P. 798.) Instead of attending law school workshops, young conservative lawyers were participating in seminars and informal discussions at the Justice Department; instead of publishing law review articles, they were writing memoranda on the history of the framing of the Constitution and its significance for constitutional interpretation. In 1987, Justice Department lawyers produced Original Meaning Jurisprudence: A Sourcebook. The following year they produced Guidelines on Constitutional Litigation, which explained that an originalist approach to constitutional analysis “should presumptively be followed.” (P. 799.)

With the Justice Department in the Reagan years serving as the essential incubator and promoter of originalism as a viable theory of constitutional interpretation, developments in American politics further bolstered the stature of originalism on the constitutional scene. Justice Antonin Scalia joined the Supreme Court in 1986 and soon became originalism’s most effective booster. The following year Reagan nominated another defender of originalism, Robert Bork, to the Court. His defeat in the Senate prompted critics of originalism to once again announce its demise. Bork’s originalist views, wrote Ronald Dworkin, “were so thoroughly discredited in the hearings, and proved so generally unpopular, that I doubt that they will any longer be advanced even by lawyers and judges who found them congenial before.” (P. 801.) This prediction proved dead wrong of course. If anything, conservative anger at Bork’s defeat bolstered support for originalism. The Justice Department continued to promote originalism and it gradually gained a foothold within the federal judiciary. In 1992, Clarence Thomas joined the Court and soon proved himself to the be most committed originalist to ever sit on the Court.

Baumgardner explains how these developments outside the legal academy had the effect of advancing the stature of originalism in the law schools. Justice Department lawyers became law professors, some of them rising to the ranks of nation’s leading constitutional scholars. Among conservative legal scholars, originalism became the dominant theory of constitutional interpretation. It was the focus of countless articles, symposia, and debates. In the academy, the Justice Department’s more practical, results-oriented approach to originalism gained more analytical rigor. Although accounts of the historical trajectory of political and legal concepts often focus on their translation from the world of ideas to the world of practice, Baumgardner makes a persuasive case for giving attention to the flow of ideas in the other direction. His history of originalism shows how an idea that gained substance and stature outside the academy then shaped debates and careers within the academy.

Aaron Hall’s Plant Yourselves on its Primal Granite: Slavery, History and the Antebellum Roots of Originalism is a compellingly argued and elegantly expressed account of constitutional contestation in the first half of the nineteenth century. Hall examines how lawyers and judges in antebellum American called upon the history of the framing of the Constitution to legitimate their constitutional arguments about slavery. The authority of the Founding in American constitutional culture was never a given; it had to be constructed, and that construction, Hall argues, was in large part the product of antebellum debates over slavery.

Drawing on material in his recently completely history Ph.D. dissertation, Hall argues that it was in debates over slavery, more than any other subject of constitutional contestation in the nineteenth century, that jurists turned to the Founding for authority. Cases involving slavery, “inspired an effort to produce settled authoritative answers through stories about original promises, expectations, and intentions, an approach that recruited popular history and faith in a fathers’ Constitution.”¹² This turn to cultural authority to bolster formal legal claims Hall terms “vernacular constitutionalism.”¹³

The text of the Constitution could only provide so much. But crafting stories about the Founding that resonated with the anxieties and desires of Americans in the antebellum period could do much more, expanding the possibilities of constitutionalism to provide seemingly definitive answers to the issues that were tearing the nation apart. These projects of “narrative world building,” as Hall terms it, resonated with speakers and audiences at an emotional level. (P. 749.) References to the Founding were gilded with mysticism or religion—the framers were “inspired,” the Constitution touched by the “finger of God.” (P. 754.) Actively cultivated by lawyers, vernacular constitutionalism became an accepted register of argumentation for judges as well. “As courts leaned upon its legitimating authority, public constitutional history became a kind of constitutional law” in the decades leading up to the Civil War. (P. 752.) “[P]opular historical authority and formal legal justification would move together.” (P. 752.) Hall shows how this dynamic played out in the 1842 Supreme Court case Prigg v. Pennsylvania, in which the “justices constituted themselves as a court of history to govern slavery.” (P. 755.)

Hall argues that this nineteenth-century history helps to explain the “deep roots of originalism’s appeal.” (P. 747.) More than just a theory of constitutional interpretation, originalism, Hall explains, “can be understood as a form of constitutional engagement both in court and out of doors that integrates public memory culture and legal reasoning.” (P. 747.) Understanding originalism in this way “directs attention toward the formation of the constitutional culture that sustains originalism.” (P. 748.) Hall describes the entwinement of “public memory culture and legal reasoning” as the “taproot of originalism.” (P. 760.)

While Baumgardner remains agnostic on what his historical account says about the value of originalism as a method of constitutional engagement, Hall, in his conclusion, directs his history analysis in a critical direction. Originalism then, like originalism today, “dispossess[es] living generations of interpretive and policy-making authority” and “obscures the act of choosing meaning and making policy.” (P. 761.)

One of the puzzles of the history of originalism is why a theory of constitutional interpretation that legal scholars and historians alike have so regularly and thoroughly critiqued, denounced, and dismissed remains such a vital force in American constitutional discourse. In these important new articles, Hall and Baumgardner help to answer this puzzle.

A Case for Legal History

Jun 19, 2019 Allison Madar2 comments

Making a case for the value of legal history on a forum dedicated to the study and celebration of the field might seem unnecessary, but Laura Edwards’s historiographical essay in the Spring 2018 Journal of the Early Republic (JER) is too good not to bring to the attention of legal scholars.

Edwards not only makes the case for the importance of the study of legal history as more than a subfield within larger explorations of the era of the early republic, but also illuminates (or, for legal historians reading the piece, reinforces) just how complicated “the law” was and the role it played in people’s everyday lives. “Law was not the authority to which people deferred,” she insists. “It was the authority they made. As such, it is impossible to understand the early republic without it.” (P. 147.) While these contentions might seem obvious to historians of the law, there is much to gain for specialists and non-specialists alike by reading—and teaching—Edwards’s notable article.

Edwards’s goals in “Sarah Allingham’s Sheet and Other Lessons from Legal History” are twofold. First, she aims to introduce recent scholarship that has moved “beyond the written records, legal officials, and designated institutions that other historians usually rely on to account for [the law’s] presence and influence.” (P. 122.) Second, Edwards challenges the idea that, in the nineteenth century, the law was either “simple” or “straightforward.” (P. 122). It was “the law’s very complexity,” she argues, that “made it more accessible to a wide range of people” (P. 122.) Edwards illustrates her aims through the story of a dispute over a bedsheet in New York City during the early nineteenth century, which she skillfully weaves throughout the essay, and then shifts to a discussion of both well-known and more recent work in the field of legal history.

Despite Hendrik Hartog’s consideration of the law in both “legal institutions” and “the streets of New York” (P. 123) in Pigs and Positivism,¹⁴ Edwards suggests that most historians of the era still “[tend] to locate the law within the governing institutions of the state.” (P. 123.) Edwards then discusses the ways in which early Americanists have, since the 1980s, taken a different approach, which has led them to wider studies of law and society. For scholars of early America, the shift away from “concerns with the ultimate emergence of the state” (P. 127) began in the 1980s and continued into the 1990s with a turn that extended both the chronological and geographical boundaries of the field. That turn, Edwards explains, included inclusion of the early nineteenth century and work that examines the persistence of colonialism even after the American Revolution. By the early 2000s, leading legal historians took up the mantle, and in a 2001 edited collection, The Many Legalities of Early America, demonstrated in essay after essay “that law was essential to understanding the colonial past more generally.” (P. 130.) These “scholarly currents” (P. 131) remain relevant in some of the most recent scholarship in what is now, in the late 2010s, referred to as “vast early America.”

Edwards also argues that “scholarship on coverture . . . has changed our understanding of the meaning and operation of legal principles” (P. 132), and dives into an analysis of some of the best existing work on the topic, including work by Holly Brewer, Cornelia Dayton Hughes, Mary Ritter Beard, Michael Grossberg, and others. From there, Edwards elucidates how legal scholars of the nineteenth-century United States have worked to link “[t]he institutional context of the early republic . . . to its colonial past” (P. 134) through investigations of legal institutions at the state and municipal levels. “The post-Revolutionary ‘state,’” Edwards suggests, “now looks far less coherent” (P. 136), as do the “legal relationships between localities, states, and the federal government.” (P. 137.)

In the remaining pages of the essay, Edwards touches on the pervasiveness of the law in the lives of ordinary people with a discussion of existing work on both credit and debt and religion, namely, disestablishment. Legal historians, she states “have moved law well beyond the boundaries that once contained it” (P. 141), and, over the last several years, scholars have started to include just how intertwined the law is with “cultural context.” (P. 142.) Moreover, Edwards’s convincingly argues that “law infused all aspects of life, even the lives of those without resources and with tenuous claims to rights.” (P. 146.)

Edwards’s historiographical examination of the complexities of legal history is both engaging and informative. Therefore, if you’re looking for an up-to-date discussion of some of the most recent scholarship on “the law” and the early republic, trying to find a classroom resource to introduce students to the studies of the law and legal history in that era, or just want a model for how to write an effective historiographical essay, Laura Edwards’s JER article is a good place to start.