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Unbroken Tradition” or Broken Chain? Contextualizing Medieval Abortion Law

Oct 27, 2025 Thomas J. McSweeneyAdd a Comment

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court relied on medieval English legal texts to argue that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law.”¹ In Context Matters, Sara Butler demonstrates that reading medieval texts shorn of their context can be dangerous. Butler shows us not only that the rationales behind abortion laws were different in the Middle Ages, as we might expect, but also that the term “abortion” itself referred to a broader and different set of practices than those encompassed by the word “abortion” in its contemporary usage. Butler argues that, when we put medieval abortion laws in their context, they appear to be something fundamentally different from modern abortion laws. Rather than an unbroken chain, we see two very different types of practices in modern and medieval abortion law.

Butler, whose scholarship has encompassed topics such as forensic medicine in medieval homicide investigations, the history of peine forte et dure, and, indeed, the treatment of abortion in medieval English law, is well positioned to add important context to the texts Justice Alito cites in Dobbs. She surveys writing on abortion over a period of several centuries and a number of different geographic contexts to illuminate the major themes of medieval thought about abortion. And, as Butler observes, the major problem the court faces in trying to trace the history of abortion back to the twelfth or thirteenth century is that in discussing abortion today and abortion in the Middle Ages “we are not comparing like entities.” (P. 22.)

The medieval concept of abortion was both narrower and broader than modern conceptions. On the one hand, medieval law treated miscarriage as a category of abortion, as a miscarriage was thought to be a sign of negligence on the part of the mother. On the other hand, as is well known, the medieval concept of abortion abortion only encompassed the death of a fetus post-quickening, as that was thought to be the point at which the fetus was imbued with a soul. Butler also shows, however, that a number of medieval texts demonstrated “an unwillingness to treat the fetus as a person” even after quickening. (P. 10.) Both Britton and the Mirror of Justices—two English legal texts of the thirteenth century that were not cited in Dobbs—state that it was not felonious homicide to kill a fetus before birth.

Medieval texts were thus mixed on whether the killing of a quickened fetus counted as homicide. But even among those that did treat abortion of a quickened fetus as homicide, it is not clear that we should read those texts as treating abortion as “criminal.” As Butler observes, “most of the laws which refer to abortion as homicide belong to canon law.” (P. 10.) As Butler pointed out in a previous article, only a handful of cases where a woman was prosecuted for aborting her fetus have been identified for the whole of the medieval period in England, and they are all cases from the ecclesiastical courts.² The king’s courts regularly intervened when a pregnant woman was assaulted and her fetus died as a result, and it is clear that they treated the killing of the fetus as homicide in those types of cases. But when it came to a woman aborting her own fetus, “more often than not, it was deemed a spiritual matter, reserved for the internal forum, and deserving of penance, not punishment.” (P. 10.)

Butler’s observation raises an interesting question: if the Supreme Court is going to apply a “history and tradition” test, to what extent should we consider canon law part of that tradition? The courts of the Church had jurisdiction over subject matter that we would think of as secular today, such as probate, and also had a criminal jurisdiction over, for instance, sexual sins. Should canon law count as part of the nation’s “history and tradition”? Or is it evidence that medieval law was just too different from modern law for it to be of much use in constitutional interpretation?

But Butler argues that, even in cases in which abortion was criminalized, the rationale of that criminalization was very different from the rationale of abortion laws today, which aim at protecting the fetus. She presents a number of examples of rules that treated abortion primarily as a crime against the woman’s husband, either because it deprived him of an heir or because it was carried out to conceal the woman’s adultery. Butler argues that we should understand laws about abortion in the context of an array of laws that were “founded firmly in discomfort with a woman’s control over childbirth” and that sought to protect husbands against being cheated out of an heir. (P. 15.) Concerns about abortion mirrored concerns, found in texts such as the Castilian Siete Partidas and the English Bracton, that a recent widow might fake a pregnancy and substitute someone else’s child in order to produce an “heir,” defrauding her dead husband and his family.

I am not certain that this context would convince the Supreme Court. After all, the question the Court posed, and was ostensibly using these historical examples to answer, was whether the “right to abortion” is “deeply rooted in the Nation’s history and traditions.”³ I doubt one could make that argument from the medieval sources. But, as Butler demonstrates, the sources do not clearly establish that abortion, at least abortion in the sense the word was used in Dobbs, was criminal in the medieval common law. Indeed, it is not clear that it was a matter for the common law at all.

Leaving aside the larger debate over whether courts should employ historical tests of this kind, and assuming that they will continue to do so, Butler’s Context Matters illustrates the kind of careful scholarship that courts should be looking to. It reminds judges and clerks that the words they are reading in a medieval text do not always mean what they think they mean. When reading medieval texts, context matters.

How Should History Be Put on Trial?

Sep 24, 2025 Sara MayeuxAdd a Comment

In New York State Rifle & Pistol Ass’n., Inc. v. Bruen, 597 U.S. 1 (2022), the Supreme Court instructed lower courts to apply a “history and tradition” test when evaluating the constitutionality of gun laws. For example, if considering an age limit on gun possession, the court must determine whether states imposed sufficiently analogous age limits in the past. Since Bruen, I have occasionally received inquiries from trial lawyers around Tennessee. Inevitably they have a looming deadline and need a legal historian to help out with a gun case, and inevitably I have to decline. I can understand why my name might pop up in a Google search: I live in Tennessee, I teach constitutional law (including cases like Bruen), and I’m a legal historian by training. But I don’t have any particular expertise in the history of gun laws, at least not as historians define expertise (i.e., years of immersion in the relevant primary and secondary sources).

When reading Joseph Blocher and Brandon L. Garrett’s forthcoming article, “Applying History as Law,” I realized my experience illustrates a larger phenomenon: “In the wake of Bruen, it quickly became apparent that the number of historians who seriously study gun laws is actually quite small; it would be impossible for them to serve as experts in every case, even if the litigants consistently had adequate resources to retain them.” (P. 46.)³

As Blocher and Garrett chronicle, the Supreme Court in various doctrinal contexts has increasingly emphasized historical facts in constitutional litigation (a category that potentially includes a large swath of otherwise workaday criminal cases). Of course, there is plenty of theoretical debate about the role history should play in constitutional interpretation. But this article focuses primarily on the nuts-and-bolts questions of practical implementation that “history and tradition”-type tests raise for lower courts and litigants. And ultimately, the authors raise provocative questions about whether it’s possible, much less desirable, for historical fact-finding to become a routine part of day-to-day litigation.

To be sure, jurists have long drawn upon historical background to interpret the meaning of constitutional provisions. In recent years, though, the Supreme Court has increasingly adopted doctrinal tests that require lower courts to answer specific and somewhat bespoke historical questions when applying the tests (e.g., what is the history of age limits on gun possession). Although the Second Amendment post-Bruen is a major focus, the authors canvass other doctrinal contexts too, such as abortion and religion. In these areas, the justices not only cite historical facts themselves, but also “announc[e] tests that require lower courts to engage in their own historical fact-finding in order to resolve concrete disputes.” (P. 6.)

Such tests can raise difficult questions for lower courts. For example—and notwithstanding that Supreme Court justices often seem to feel at liberty to find facts themselves through in-chambers research and/or amicus briefs—American trial judges in adversarial proceedings are not usually supposed to engage in independent fact-finding. The Federal Rules of Evidence, for example, prohibit taking judicial notice of facts unless they are beyond “reasonable dispute.”

Therefore, if a case turns on debatable historical facts, presumably the parties must place those facts into the judicial record. But how mechanically should this occur? When are written filings sufficient? Should the parties hire historians to testify as experts? If they don’t, should the trial judge appoint an independent expert? Can lower courts recycle historical facts previously found by other courts as a kind of “precedent”? As Blocher and Garrett summarize, lower courts and litigants have recently debated and divided over such details, particularly in Second Amendment cases.

Existing court rules and procedures are not well tailored to this type of exercise. For example, in criminal cases, “the typical pre-trial discovery and hearing rules were crafted with forensic reports and suppression hearings in mind, not disputes about legal history.” (P. 30.) Nor do lawyers necessarily have the training, library resources, and time to conduct in-depth historical research. Indeed, the authors note that “Second Amendment challenges typically involve a criminal statute and thus place the initial demands of historical research on criminal defense lawyers and government attorneys—two groups for whom time and resources are at a premium.” (P. 32.)

Blocher and Garrett argue, nevertheless, that historical disputes should be treated the same as “disputes regarding any other area of technical or scientific evidence—relying on the parties but also, where needed, on experts.” (P. 11.) Ordinary procedural and evidentiary rules should apply, including the Federal Rules of Evidence. Appellate courts should defer to the lower courts as the finders of fact in the first instance and potentially remand cases if there was inadequate factual development below. (P. 11.)

Notably for historians, taking these recommendations seriously might mean a reduced reliance on amicus briefs at the appellate and Supreme Court level. In recent high-profile cases, such briefs have become the primary vehicle for historians to influence (or try to influence) constitutional decision-making. Instead, the emphasis might shift toward hiring historians as expert witnesses at the trial level. To be sure, there are some specialized contexts like voting rights where historians already frequently testify, but in other fields the practice might be new terrain.

On one level, Applying History as Law provides a helpful overview of how litigants and lower courts are responding to the historical turn in constitutional doctrine. On another level, the article is also deceptively provocative, weaving through its practical analysis a trenchant critique. As the authors suggest at various points, once one starts working through the practical questions it’s hard not to wonder whether the Supreme Court is asking “more of historical fact-finding than the legal process can legitimately deliver.” (P. 46.) If so, then the doctrine may (and perhaps should) eventually shift back towards standards that are more capable of application by lower courts.

In that sense, I found the article oddly reassuring. It seems that underneath the new political trappings of the Supreme Court’s recent twists and turns, there is also something else going on that is quite familiar in the annals of judicial history: justices from their lofty heights imposing rules upon the rest of the legal pyramid that do not really make sense for busy lawyers and trial judges who have to worry about deadlines, dockets, and trying not to get reversed on appeal.

A Nation of Emigrants: Understanding Citizenship from the Inside Out

Aug 26, 2025 Allison Brownell TirresAdd a Comment

In 1958, then-U.S. senator John F. Kennedy published the first version of his influential book A Nation of Immigrants.⁴ Kennedy’s account, written to hasten the passage of long-overdue immigration reform, solidified the mythology of the United States as a land of arrival for those looking for democracy, economic security, and the so-called American dream. It reflected a national mythology that centers the U.S. as the most desired destination. In his book Quitting the Nation: Emigrant Rights in North America, historian Eric Schlereth turns this mythology on its head, viewing the U.S. not as a place of destination but as a place of departure. As such, he provides a much-needed corrective to the historical record and enhances our understanding of the legal history of citizenship and migration.

Schlereth’s account focuses on the pivotal era between the American Revolution and the Civil War, when citizenship rights were both highly contested and minimally regulated. The American Revolution itself, as Schlereth reminds us, was fought in part over rights to emigrate from Great Britain and ultimately to expatriate to the new American republic. Colonists seeking independence rejected the English legal tradition of “perpetual allegiance,” which assumed that subjects could not choose to give up their allegiance to the King. Rejecting perpetual allegiance was simple, but deciding what would replace it was not. Was it possible to have a free right of emigration and expatriation from the fledgling United States without threatening the future of the political union, or embroiling the country in unwanted foreign conflicts? How should the new nation regulate the loss of citizenship, and what should be the obligations of those seeking to give it up? These were among the questions that individuals, courts, legislators, and the press took up in the decades after the founding and which Schlereth explores in fascinating detail.

Those who chose to leave the United States and establish new communities in other lands did not have to go far: in the early republic, the United States bordered Spanish territory to the southwest and British territory to the northeast. The proximity of these colonial powers made it easy for Americans to declare allegiance elsewhere, which they did in the tens of thousands prior to the Civil War.

Law had an important part to play in these debates, but it was rarely the leading edge. As Schlereth shows, eighteenth-century legal theorists embraced a right of emigration but were fuzzy on the details. As he notes of international law at this time, “[t]he liberty to leave existed with certainty whereas the conditions that permitted lawful departure seemed open to debate.” (P. 16.) Congress tried and failed multiple times to adopt legislation relating to emigration and expatriation during this period. States like Kentucky, Pennsylvania, and Virginia issued the strongest support in their state constitutions, treating the right to leave as a natural right, but they were not uniformly followed by other states. The absence of clear legal guidance meant that individuals led the way in shaping what emigration rights would mean, rather than being themselves led by law. Ultimately, it was the people who decided to use what they saw as their core right to change allegiance who shaped the law itself.

Schlereth’s account includes fascinating stories about many of these migrants. He draws on a rich trove of documents, including diaries, administrative logs, newspaper accounts, recruitment plans, and legal records, with a particular focus over time on the Spanish colonies of Upper and Lower Louisiana, the British colonies of Upper and Lower Canada, and the Mexican states of Coahuila and Texas.

In each of these places, Schlereth uncovers a historical record of willing and enthusiastic migration. Those embracing the right to leave came from many sectors of American society, although the freedom to emigrate was oftentimes influenced and/or greatly limited by race, gender, and class. White propertied men had much greater access to free movement in general and could legally make decisions on behalf of those in their household. When Virginian and Revolutionary War veteran Peter Bryan Bruin moved to Natchez in 1788 in search of better land and opportunity, he brought with him his wife, children, and 20 enslaved persons. Bruin took the oath of allegiance to Spain and eventually became an official in the Spanish colonial government, but the record is silent as to whether those accompanying him would themselves have freely chosen to change their allegiance. Schlereth’s account includes many examples of men like Bruin, but he also uncovers stories of other migrants without access to the privileges of white race and/or male gender who openly embraced emigrant rights. We meet, for example, Mary Ann Shadd, a free Black woman who departed from Delaware to Canada West in 1851, attracted by the promise of fertile lands and civil and political rights for the Black population, and became an influential writer, editor, and recruiter for others to follow in her footsteps.

Individuals like Bruin and Shadd embraced a right to emigrate and were largely able to do so free of constraint by either sending or receiving countries. But as Schlereth shows, their departures caused anxiety and confusion, especially when the countries were themselves in conflict. Identifying where someone belonged and whether, for example, they would be liable for violating domestic or international law was a fraught endeavor when nation-states could not agree on the individual’s citizenship. But efforts to constrain emigration and expatriation rights in the U.S. consistently met with failure, as lawmakers were faced with the fact that tens of thousands of persons had already embraced this right and were steadfast in defending it.

For scholars of legal history, Schlereth’s account provides a fascinating example of how the exercise of a perceived right can, itself, eventually lead to the embrace of that right in law. Ultimately, the federal government rejected the idea of “collective expatriation” as practiced by states in the secessionist South in forming the Confederacy but embraced a right of individual emigration in the Expatriation Act of 1868. After reading Quitting the Nation, we understand this Act as the culmination of decades of tens of thousands of individuals choosing to shift their allegiances and defending their ability to do so.

In an insightful epilogue, Schlereth draws comparisons to today’s gaps in the legal landscape. A right to emigrate implies a right not just to leave but also to choose a new country of allegiance, but contemporary border policing and legal barriers make that choice all but impossible for most migrants. Individuals fleeing climate disasters all over the world overwhelm systems of refugee law that are outdated and ineffective in managing human movement. Time will tell whether these emigrants will, themselves, force a new reckoning in the law by exercising what they see as their human right to find a safe place to live.

The Survival of Nations

May 15, 2025 Anders WalkerAdd a Comment

Kathleen DuVal’s Native Nations is the latest in a raft of books that tackle the long history of Native America. It resonates with Pekka Hämäläinen’s Indigenous Continent: The Epic Contest for North America (2022) and Ned Blackhawk’s capacious The Rediscovery of America: Native Peoples and the Unmaking of American History (2023). For legal historians, DuVal’s book makes for interesting reading because it combines both the long history of Native America – including the rise and fall of Indian cities like Cahokia – and the more recent past, all the way up to the “indigenous renaissance” of today. (P. 552.)

Like Hämäläinen’s Indigenous Continent, DuVal begins her story before European contact, explaining how Native Americans thrived on the North American continent for centuries. Cahokia, a massive complex on the Mississippi River, boasted a population larger than London in 1250. However, in the years leading up to European arrival, oddly modern problems—including “climate change”—led Native Americans to abandon their urban lives for smaller, more democratic social formations, or what DuVal calls a more “egalitarian order.”

Once Europeans did arrive, Native Americans engaged them in ways that defy stock narratives of colonization. They played Europeans off one another, exploited them for trade purposes, made alliances with them when helpful and—when necessary—killed them. It was not until the nineteenth century, in other words, that Europeans truly began to make inroads into the continent, a story that tracks Hämäläinen’s narrative. “By 1830,” DuVal notes, white Americans outnumbered Native Americans ten to one: “the United States had an astounding 12.8 million people (two million of them enslaved),” while the entire Native American population of the continent was down to less than one million (P. 442.)

During this phase, the Supreme Court handed down one of its most important opinions on Native Americans, Worcester v. Georgia, which declared American Indians to be members of “domestic dependent nations” (Pp. 451-52.) This concept was novel. Nations, as a general matter, enjoy sovereignty. However, by declaring them “dependent,” the Court created something new, an entity that lacked true sovereignty but—at the same time—lacked the various Tenth Amendment protections enjoyed by the states. This treatment could have been viewed as a defeat for Indian hopes of autonomy, but DuVal does not read it that way. For her, the Westphalian idea that Native Americans were “nations” became internalized in the minds of Native Americans, and survived removal orders, reservation systems, and the Civil War.

Which, incidentally, was another turning point in the status of Native American nations. Not just a struggle between North and South, the war emerges in DuVal’s book as a battle for federal primacy over all entities that might claim sovereign status. The Southern states’ loss became the Indian nations’ loss as well, for the war rapidly expanded the size and scope of the federal government—a government that directed the same force that it had used to quash the Confederacy against Native Americans. “The Civil War forced Native nations into new relationships with the United States,” notes Du Val. “For the rest of the nineteenth and twentieth centuries, U.S. policy would fluctuate between brutal violence against American Indians and attempts to incorporate them into the United States.” (P. 493.)

Hämäläinen ends his book here, at the close of the nineteenth century, a moment that DuVal calls “the nadir” of Native American hopes for retaining their culture, their land, and their “nations.” However, DuVal continues her story into the twentieth century, enabling her account to explore the winding, largely legal history of Native American survival and – as she puts it a “renaissance” of “possibilities” that exist in “the present.” (P. 500.)

DuVal’s twentieth-century discussion resonates with Blackhawk’s The Rediscovery of America, another sweeping history of Native America that begins with first contact and then follows the various ways that Native Americans have shaped American history. Both Blackhawk and DuVal lament the 1910s and ’20s, which were marked by forced assimilation, allotment, and the “sending of Native children to boarding schools.” (P. 514.) However, both agree that something changed in the 1930s. Under the leadership of John Collier, FDR’s Commissioner of Indian Affairs, the federal government abandoned allotment and assimilation and “moved back toward the ‘domestic dependent nations’ of Worcester v. Georgia,” by allowing Native Americans to constitute their own governments, reject allotment, and recover their traditional cultures. (P. 523.)

This moment, marked by the 1934 Indian Reorganization Act, is the subject of one of the most interesting passages in DuVal’s book, which suggests that FDR’s radical rethinking of American society had a profound effect on the plight of Native Americans. Indians had been lobbying for their rights since at least the days of Tecumseh, in 1811. So, what had changed?

Perhaps it had something to do with the Great Depression. William E. Leuchtenburg, David M. Kennedy, and others have all documented the crisis in confidence that beset the nation during the 1930s, a startling turn away from the “roaring” exuberance of the 1920s. Did this downturn help Indians? Perhaps. John Collier held up Native American customs and culture as superior to white, a startling admission for a federal official.

However, in subsequent decades, anti-Indian sentiment within the federal government continued to fluctuate. In the 1950s, for example, DuVal explains that the federal government embraced a theory of “termination” that sought to break-up Indian traditions and move Native Americans to cities – a move oddly reminiscent of the Court’s integration mandates in Shelley v. Kraemer and Brown v. Board of Education. However, Native Americans survived the transition, took inspiration from Black Power, and reconstituted their own “nations” in urban America, beginning with the American Indian Movement, or AIM, in 1968.

By 1974, the federal government fluctuated once again and passed the Indian Self-Determination Act, a law that recognized both “individual rights and tribal sovereignty.” (P. 539.) Both DuVal and Blackhawk attribute this legislation to Native American activism, and in particular the American Indian Movement, but one wonders whether other factors contributed as well. For example, Richard Nixon signed the bill into law as anger simmered over the Vietnam War, doubts roiled over his involvement in Watergate, and Americans once again questioned their nation’s identity. This leads to a final thought. Could it be that Native American “nations” fare best when the American “nation” fares worse? And could a similar dynamic explain historians’ interest in Native American nations today?

Small Wars, Big Law

Mar 24, 2025 William SmileyAdd a Comment

The last two decades have seen a boom in scholarship on law and empire—a boom that owes much to the work of Lauren Benton, through her books Law and Colonial Cultures (2001) and Search for Sovereignty (2009). Now Benton broadens her lens to look at the longue durée history of law and war across, and even beyond, European empires, in They Called It Peace. Her book is a wonderful survey of the interplay of legal ideas and violence in European empires from the early modern era to the present. Benton focuses our attention on “small wars,” or “violence at the threshold of war and peace” (P. 8), which was “chronic, and repeating” across the world (P. 4). Rather than exceptions to the rule, she argues, small wars were the rule. And while small in scale, they could be both brutal and decisive, even leading to massacres and extermination.

Benton draws on examples from multiple empires—French, British, Portuguese, and Spanish—and different modes of conquest, both seaborne and land-based. We go from the Indian Ocean to Uruguay to the Pacific Northwest to Polynesia to Mexico to the Coromandel coast to Reconquista Spain to Jamaica. And we travel from the early modern period to the 19th century while also entering into conversation with modern dilemmas of violence—questions of “force short of war” like the US War on Terror, or “special military operations” like Russia’s invasion of Ukraine.

In this Jot, I want to pull out three theoretical innovations in Benton’s book that provide useful tools for other legal historians, and legal scholars more broadly. First, she insists that “law, defined broadly, infused all forms of imperial violence” (P. 8). In contrast to some scholars who have seen imperial warfare as falling into a “zone of exception” outside the law, Benton argues that it “was never operating outside the law” (P. 186). But that certainly does not mean that law limited imperial brutality. Instead, Benton “exposes the myth that law worked to contain violence. It structured violence and presented historical actors with possible worlds of acceptable mixes of small and cataclysmic violence” (P. 198). This was true not only for imperial states and agents, but for subjects more broadly, who “usually strained to maintain relations with legitimate sponsors and sought legal cover for their actions” (P. 7). (Students of Benton’s earlier work will hear echoes of the idea of “legal posturing,” or “imperfectly reconstructed legal practices and arguments” (Lauren Benton, Search for Sovereignty (2010), P. 24).)

This set of arguments resonates with other recent work on law and empire, and it should guide historians’ questions going forward. While exposing European imperial hypocrisy is surely valuable, we might also look for how law structured and channeled decisions. This often means moving past an assumption that law’s purpose was to limit suffering or brutality, or to promote justice or human welfare. In imperial wars, and in empire more broadly, law could work to shape individual or state actions without necessarily improving outcomes.

Second, Benton pushes us to put European empires in a broader legal field, and not to privilege their ideas of law. Across the medieval and early modern world, she contends, polities with very different cultural backgrounds shared a rough legal vocabulary. “Nearly everyone recognized a few broad categories of legal action” (P. 12), including jurisdiction, protection, punishment, truces, and plunder. These shared categories created familiar rhythms, like the oscillation between violence and truce and back again that was shared between polities as diverse as the Aztec Empire and the Abbasid Caliphate.

Indeed, while previous work has paired European Christian empires with others who shared similar intellectual traditions (like Middle Eastern Muslim polities), Benton goes further. Her idea of “big law” extends even to the indigenous peoples of the New World. This is a helpful pushback on the common tendency to view international law—for better or worse—as a European innovation. In recent years scholars have shown that non-Europeans had their own ideas about international law, and that they creatively adopted and deployed European rules in the imperial age—but Benton goes further by suggesting a shared set of ideas at the root of everything.

Third and last, Benton bridges the gap between studies that focus on legal intellectuals and their writings, and those that instead emphasize actors such as lawyers, litigants, diplomats, or officials. Like the internet meme, she asks, “why not both?” They Called it Peace moves seamlessly between treatise writers such as Grotius and Vattel, and a wider cast of characters including Royal Navy captains, French agents in India, settlers in New South Wales, and South American Guaraní. Benton escapes from the binary dilemma of whether “texts influenced practices” or “texts followed practices” to argue that “European imperial agents and European legal writers were arriving, in different locales, at similar solutions to related problems” (P. 146). Here again we see a model for legal historians: theory without practice is only philosophy, while practice without theory is only improvisation. European imperial warfare is not the only field where legal historians profit by combining genres; indeed, a “law in action” approach demands nothing less.

Recovering an Erased Era of Early American Imperial Legal Experimentation

Mar 6, 2025 Jedidiah Kroncke1 comment

Inherent in historical work is recovering aspects of the past lost to contemporary awareness. In her new book, Arbitrating Empire: United States Expansion and the Transformation of International Law, Allison Powers recovers one such aspect that has been more than passively forgotten—it was actively erased. Her target is a series of state-to-state arbitral claims commissions central to American international law during the country’s rise as a global power. Here Arbitrating Empire revises understandings of early international arbitration as an instrument of “civilized” non-violent dispute resolution by exposing its function as a legal technology of imperial power. Powers’s intervention is a powerful and persuasive addition to the rapidly expanding literature on the evolution of the legal forms used to project American power abroad while denying accountability for its violence. The initial history of American international arbitration, she shows, was governed by the imperative “to secure territory, wealth, and political power across the globe while disavowing charges of colonial aggression.” (P. 7.)

Arbitrating Empire centers on five different claims commissions from 1870-1930 tasked with resolving thousands of claims for damages incident to U.S. imperial expansion. In seven well-ordered, richly detailed chapters, Powers examines claims stemming from the Mexican-American War, the U.S. bombardment of Samoa, the Spanish-American War, land expropriations in the Panama Canal Zone, and the Mexican Revolution.

Powers shows how these commissions were seen as novel forms of dispute resolution requiring a neologism—as she notes, “they called it arbitration.” (P. 2.) The product of such commissions became a foundational legal corpus for how “international law” was understood in this era, and helped form now-ubiquitous concepts such as sovereign debt. Yet, this corpus is largely absent from contemporary and modern treatises. Moreover, state-to-state arbitration was abandoned after nearly sixty years of serving as a primary means by which the United States deflected and contained accountability for the effects of exerting its power abroad.

While traditional accounts explain this abandonment as a result of arbitral commissions’ inefficiency, Powers shows that their demise was largely driven by their very efficacy—but an efficacy in exposing the hypocrisies of American empire far too readily and publicly. After victims of American imperial violence forced this hypocrisy into public light through their claims, many within the U.S. State Department worked to remove these voices from public awareness to ensure that these cases would only live on as narrow legal precedents shorn of their troubling imperial content or implications.

One consistent thread through these diverse settings was how American claims were justified and foreign claims denied by delegitimizing others’ self-governance. The decisions of the 1868 US-Mexican Claims Commissions routinely concluded that the regular operation of Mexican law—such as condoning labor strikes for unpaid wages—was a result of incompetency. Similarly, local Samoan governance was rejected for being “non-democratic” and thus inherently suspect. Even the presence of private consumer boycotts or peaceful protests was reframed as existential threats to normal business operations. These judgments did so by invoking the “law of nations” or “standards of civilization”—then popular to frame American international engagement as neutral and benevolent. Even participation in arbitral commissions themselves was demanded by the U.S. as a demonstration of other polities’ “civilized” status.

Such invocations also grounded a global “right to commerce” as inherent in modern civilization. Powers notes how American claimants saw themselves as entitled to special privileges abroad, from an individual entrepreneur’s “rights as an American” to essentially ignore foreign obligations to a military official’s right to act as a “boss of the ranch” wherever his warships took him. This language of commerce by right was most explicit in the Panama Canal Zone, referred to as the “world easement.” Here Panamanians’ eviction from their lands as “squatters” was justified, per Secretary of State John Hay, “not only by the stipulations of the treaty, but also by the interests of civilization.” (P. 117.)

Arbitrating Empire is most evocative when it uncovers how the seductive illusions of legal formalism worked to advance imperial power. Arbitral judges often openly acknowledged the tenuous legal grounds on which they operated, including famed jurist Francis Lieber, who saw his role in the 1868 US-Mexican Commission as one of near pure legal invention. Less reticent were actors such as the U.S. lawyer deemed “Chief Justice” of the “Supreme Court of Samoa” who penned “international law” judgments offshore from within a British warship.

The discretionary power that arbitral judges wielded enabled legal reasoning that ultimately denied the vast majority of claims brought by non-Americans. Judges openly used cultural degradations to reject evidence presented against Americans—whose own representations were uncritically accepted on the grounds that they were “highly respectable and men of intelligence.” (Pp. 39-40.) These racialized denials played upon all-too-familiar tropes of foreign idleness and criminality, and went so far as to claim that foreign peoples were genetically incapable of participating in law itself. Panamanian citizens were deemed “racially ineligible for any form of property ownership legible under international law.” (P. 143.) Even when legally cognizable, the value of foreign murder victims lives’ was reduced to zero as their “wages had been so low that they could not realistically have contributed significant financial support to their families.” (P. 213.)

Through such racialized reasoning, arbitral doctrines were intertwined with the emergent rhetoric of the Insular Cases and the Bureau of Naturalization. Arbitral judges routinely used logics of national exclusion, going so far as to categorize Chinese citizens as “natives” of Samoa. They also cited domestic cases challenging the rights of naturalized Chinese and Japanese citizens to deny claims by other naturalized citizens resident in Cuba—a tactic that justified dismissing 98% of such claims. And when claims were made by foreign citizens based on actions within the United States, judges worked to deem such claimants as “stateless.”

Throughout, Arbitrating Empire shows how the legal reasoning of arbitral decisions worked to rationalize and exceptionalize imperial violence. In some cases, such violence was acknowledged but naturalized. One case drew on a precedent from French Polynesia where the court cast an “uprising as a natural disaster rather than an anticolonial movement.” (P. 74.) In the Philippines, widespread violence was cast by an American general as “an inevitable consequence of war…that the innocent generally suffer with the guilty.” (P. 92.)

However, whenever legal discipline threatened to impinge on imperial prerogatives it was circumvented either internally or externally, or violently. Arbitral judges were not automatons and occasionally resisted subordinating their reasoning to the bare demands of imperial power. The Samoan commission was shut down when King Oscar of Norway disputed dubious testimony given by imperial agents, and judgments in the Panama Canal Zone that acknowledged the impact of structural violence on land valuations were openly resisted by colonial authorities—who went as far as nullifying any claims based on equity. (P. 154.) One American delegate characteristically related how in Samoa “the shells of British and American guns relieved from some difficult questions of international law that might otherwise have arisen.” (P. 66.)

Herein, Arbitrating Empire demonstrates the limits of imperial legality, or at least its need for continual iteration and adaptation. By the 1930s, subjects in imperial locales—often aided by lawyers specializing in such work—had become so proficient in documenting the immense violence of American imperialism that it became American law, and not the law of putatively inferior nations and peoples, that was effectively held up as falling below noble notions of the “law of nations.” Practices such as convict labor, the use of civilian concentration camps, racialized vigilante violence, and restrictions on foreign investment rights had become part of American law domestically and deployed in American imperial projects abroad. Instead of depoliticizing imperialism through legalization, arbitral proceedings became powerful forums for publicizing imperial violence. Though initially seen as a “civilized” means of managing imperial power, over time arbitral commissions became overwhelmed by the scope of imperial violence.

As a result, the end of state-to-state arbitration in 1937 coincided with a general move in American international law away from universalist invocations of the “law of nations.” Powers emphasizes how the subsequent rise of investor-state arbitration was made possible as so much of economic globalization had already enshrined operational principles that served American interests and were actuated by the energies of the American legal profession—obscuring the systemic connections between trade and violence that state-to-state arbitrations had unintentionally made so visible.

The main “victors” after 1937 were, unfortunately, not the claimants whose injuries had often overwhelmed arbitral commissions. Rather, the victor was the form of the nation-state itself. Foreign diplomats used the publicization of American imperial violence to insulate their domestic prerogatives—even to later enact their own xenophobic legislation. This process sealed injustices into the past, under the guise of pragmatism, as one American official clearly stated: “I have not the time to enter upon any suggestion as to who has been wrong in the past.” (P. 78.)

Powers goes beyond simply explaining this lost and formative period of American international legal history by tying it to contemporary tensions still unresolved in the modern international legal system. She narratively centers a case that carried a radical challenge by indigenous peoples against the Mexican state but was transformed from an “international legal critique of colonial dispossession to a perfunctory citation presuming the existence of adequate legal remedies within states.” (P. 242.) Today, such claims have again become visible as indigenous and other marginalized people push against the nation-state as the sole arbiter of justice and raise the same issue of intra-state distributions of power that the modern international legal order has remained so reticent to address.

Arbitrating Empire makes the connections between American international law and the history of American empire in exactly the way that U.S. State Department officials hoped to erase. Powers works with archives across time and space to remedy both excisions made to treatises and misrepresentations of past precedents to directly challenge this induced amnesia. She also shows how this transition stemmed from an intra-imperial understanding that all imperial locales, and their histories, were concurrently part of a global imperial strategy in which experimental lessons could be broadly applied to avoid accountability for imperial power.

Ultimately, Powers complicates any easy notion of international law’s relationship to post-colonialism in a global economic order in which so many forms of exclusion and violence remain bound up in the legal formalisms of today’s commonly far-from-democratic nation-states. The primary challenge today for such legal historical scholarship on American empire is fully integrating the diversity of studies that have begun to map that empire’s interconnected global scope.