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The People and Their Sovereignty in the Longue Duree

In Inventing the People (1988), Edmund Morgan famously argued that the doctrine, or “fiction” as he termed it, of popular sovereignty was invented in middle seventeenth-century England as Parliament and the king engaged in civil war. Initially, the idea that the people were the basis and purpose of government was not intended to overthrow the king, or the then-prevailing doctrine of the divine right of kings that connected king to God. It simply sought to place the king in proper relationship to government by resting his authority upon both God and the people. But the basic idea of popular sovereignty, that the people could “begin, change, and end governments,” had radical implications (Morgan, P. 59), which became real when Americans rediscovered popular sovereignty in the late eighteenth century to overthrow monarchy and create new republican governments based solely upon popular authority.

But while Morgan adverted to earlier thinking about the people, principally the sixteenth-century French monarchomachs (“king killers”), he did not give it sustained attention. He is not alone, of course. It is a curious thing that what is perhaps the master concept in Western constitutionalism has until recently received scarcely any attention. To the extent it has been examined, it is usually presented as both cause and consequence of late eighteenth-century revolutionary politics in America and France. Daniel Lee’s new book on popular sovereignty in early modern legal and political thought offers a corrective, and challenges us to rethink the nature and meaning of popular sovereignty as it emerged in the late eighteenth century, a point in a longue duree that he traces back to the Roman Republic.

What we now know as popular sovereignty grew out of several not always compatible concepts of Roman public and private law, including dominium, imperium, and iurisdictio. The root concept, however, was the lex regia (“royal law”), “the legal device or instrument by which Roman popular sovereignty was fully alienated and transferred to the Roman Emperor as ‘lord,’ or dominus, of all the world” (Lee, P. 26). While superficially this concept could appear to lead directly to a more modern idea of popular sovereignty, in reality the path from former to latter was long and at times dizzying. Lee does a wonderful job of tracing this idea and its shadows through various intellectual traditions from scholasticism, humanism, and natural law, to French and English radical and absolutist thought in the sixteenth and seventeenth centuries. While the analysis is anatomical in detail at times, he frames each chapter so that the reader can understand or at least contemplate the relationship between the ligaments of analysis and the body of the narrative.

While there are many themes dancing around within this book, a couple particularly captured my attention. One concerns the origins of the idea of the constituent power—the idea, as Morgan put it, that the people can begin, change, and end government. The origin of this idea is commonly traced to Emmanuel Sieyès, a thinker in and of the French Revolution. Lee, however, traces this concept to the sixteenth-century French monarchomachs, who introduced both a theory of resistance into popular sovereignty and the idea that “the people always bear the proper and exclusive right of sovereignty” (P. 157). This was a first step toward linking popular sovereignty to revolution, a connection realized a couple of centuries later, in the late eighteenth century.

A couple of other themes revolve around the concept lex regia itself, and demonstrate that there was never a single concept of popular sovereignty. One concerns whether the Roman people ever actually conveyed their authority to the emperor. While there is some scanty evidence of such conveyance, Lee concludes that ultimately the lex regia operated as a fiction to legitimate the Roman emperor’s authority. But this was a problem that would plague the development of popular sovereignty throughout the early modern period, as various polities also tried to account for their own moment of popular creation in the absence of clear evidence. Although beyond the scope of Lee’s book, this problem would be resolved by the French and American revolutionary experiences in the late eighteenth century, which tied the constituent assembly to the people transforming popular sovereignty as both idea and practice.

A final theme of Lee’s book is also important for understanding the legacy of early modern ideas of popular sovereignty. This theme concerns the question of whether the popular grant of authority to the princeps (“prince”) was a complete alienation of popular authority (translatio), or a temporary grant that could be later recalled (concessio). In the early modern period this debate helped to frame the questions concerning the nature and legitimacy of the prince’s political authority. Variations of this debate persisted well beyond the early modern period. I have seen it in nineteenth-century America. As popular sovereignty sunk deep roots in constitutional development, variations of the debate over full or temporary alienation, this time to constituted authority, were part of a debate over how to limit the political authority of the people themselves.

Lee lays out well the intellectual debates, and provides us with the intellectual context of the history of popular sovereignty over a longue duree, a history that has been lacking for far too long. Lee’s book is now the starting point for any study of popular sovereignty, popular constitutionalism, and, I would say, the rise of constitutionalism more generally.

Cite as: Roman Hoyos, The People and Their Sovereignty in the Longue Duree, JOTWELL (July 6, 2016) (reviewing Daniel Lee, Popular Sovereignty in Early Modern Constitutional Thought (2016)),

The Turn to Procedure

Daniel Ernst’s book, Tocqueville’s Nightmare: The Administrative State in America, is a significant addition to the growing literature on the history of the administrative state. However, it also compels a rethinking of the received historiography of twentieth century American legal thought. It is to the latter contribution that I will devote this brief review.

When Alexis de Tocqueville visited the United States in the 1830s, he observed that the country—in contrast to the states of continental Europe–had very little in the way of centralized bureaucracy. This, for Tocqueville, was a good thing: powerful centralized bureaucracies threatened a significant abridgment of democracy in a country as diverse and spread out as the United States. The “Tocqueville’s nightmare” of Ernst’s title refers, then, to the situation in which too much power might become vested in the hands of bureaucrats unanswerable to the people.

Beginning in the late nineteenth century, the first federal bureaucracies began to emerge in the United States. By 1940, a vast centralized administration had developed. This was in large part a result of the efforts of early twentieth century reformers, who called for systematic, scientific, bureaucratically-managed resolutions of the country’s economic and social problems. But the shadow of “Tocqueville’s nightmare” fell over the new administrative state. Many worried that the United States had shrugged off “the despotism of a supreme autocrat” only to make way for “the petty despotism which may come from vesting final discretion to regulate individual conduct in the hands of lesser officials” (P. 1; emphasis in original). How was this “nightmare” to be averted?

Ernst argues that the “nightmare” was averted because Americans—in a gesture Tocqueville identified as characteristic of American political culture–turned to the courts. Ernst traces meticulously how the courts—and law in general—structured the new administrative state. During the first half of the twentieth century, courts repeatedly refused to surrender their right to hold administrators accountable; demanded that administrators adhere to norms of due process in administrative proceedings; and insisted that administrators assume a quasi-judicial impartiality vis-à-vis subordinates who argued cases on behalf of the government. Indeed, according to Ernst, the courts’ influence on the administrative state “went beyond the structure of an agency; it reached deep into the thought processes of administrators and taught them to justify their actions in a particularly legalistic way.” (P. 3.) The distinctly legalistic cast of the American administrative state distinguished it, Ernst maintains, from its far less restrained and far more dangerous contemporaries in Hitler’s Germany, Mussolini’s Italy, and Stalin’s Soviet Union. At the same time, the country’s common lawyers, traditionally more comfortable arguing before judges than making their case before bureaucrats, shed their hostility towards the latter and developed lucrative specialized practices that involved close relationships with agencies.

This narrative, fascinating in its own right, raises all sorts of questions for the historiography of American legal thought. An important origin point for the historiography of twentieth century American legal thought is the case of Lochner v. New York (1905), in which the U.S. Supreme Court read common lawyerly ideas of freedom of contract into the Due Process Clause of the Fourteenth Amendment in order to strike down a New York law that established the maximum length of the work day in the baking trade. Lochner, and other cases like it, incensed Progressive-era critics of the federal courts. These critics argued that unelected, conservative, common lawyerly federal judges were reading their political preferences into “law” and thereby encroaching on the turf of democratic “politics,” denying democratic majorities the right to govern themselves. In making such arguments, these critics of the courts were joining forces with an ongoing philosophical critique of law. Beginning in the late nineteenth century, pragmatic legal thinkers such as Oliver Wendell Holmes, Jr. had argued that law’s foundations in logic, morality, reason, and so on were essentially spurious. Because “law” could not meaningfully distinguish itself from “politics,” Holmes appeared to argue, common law judges should cede control over law-making to the forces of democratic “politics.”

We often tell the history of American legal thought in the first half of the twentieth century as a history of the retreat of “law” before the advance of democratic “politics.” The New Deal, accompanied by the U.S. Supreme Court’s decision to rethink its position in Lochner, represents the triumph of democratic “politics,” the displacement of law generated by a common lawyerly judiciary by law generated by legislatures and the administrative agencies they created.

Ernst’s book complicates this story considerably. If one follows the implications of his account, the story of the contest between “law” and democratic “politics” in the first half of the twentieth century is not any simple story of the retreat of “law” before the forces of democratic “politics.” It is instead a story of how “law,” by giving up its ability to check democratic “politics” on substantive grounds, instead suffused democratic “politics”—one important locus of which was the new administrative state—by becoming procedure. Through his study of politics of the early twentieth century administrative state, Ernst thus gives us rich substantive account of one important site of the changing career of “law” in relationship to democratic “politics,” of its emerging ontology as procedure.

The idea that law in the early twentieth century would transform itself into procedure as it ceded ground to the new expert knowledges of the administrative state is made clear in the writings of Felix Frankfurter, an important intellectual architect of the American administrative state and someone who features prominently in Ernst’s book. Towards the end of his career, Frankfurter recalled something he had written in the summer of 1913, as he contemplated taking up a teaching position at the Harvard Law School. In his recollection, we have a breathtakingly clear understanding of the new procedural conception of law:

The problems ahead are economic and sociological, and the added adjustments of a government under a written constitution, steeped in legalistic traditions, to the assumption of the right solution of such problems. To an important degree therefore, the problems are problems of jurisprudence,–not only the shaping of a jurisprudence to meet the social and industrial needs of the time, but the great procedural problems of administration and legislation, because of the inevitable link between law and legislation, the lawyers’ natural relation to these issues, the close connection between all legislation and constitutional law, and the traditional, easily accountable dominance of the lawyer in our public affairs. In the synthesis of thinking that must shape the Great State, the lawyer is in many ways the coordinator, the mediator, between the various social sciences (emphasis added).1

Ernst’s account of how law suffused the new administrative state is offered as a corrective to the Tea Party movement’s view that that Americans in the early twentieth century abandoned the country’s tradition of individualism when they built up the administrative state. Instead, Ernst wants to show that “the reformers who supposedly sent the Constitution into exile . . . actually designed the principles of individual rights, limited government, and due process into the administrative state” (Pp. 7–8.)

As a corrective to the Tea Party’s simplistic view of America’s past, Ernst’s account is indeed valuable. It is important to emphasize, however, that the transformation of law’s ontology into procedure in the early twentieth century was a complex and variegated affair, pointing in many different directions. The career of Felix Frankfurter, who was an ardent New Dealer and then a kind of proceduralist conservative on the Warren Court, suggests how complicated the various strands of law’s self-transformation into procedure could be. In Tocqueville’s Nightmare, Ernst is not concerned with exploring these issues. But his book is enormously suggestive. As such, it deserves a wide readership.

  1. Felix Frankfurter & Harlan B. Phillips, Felix Frankfurter Reminisces; Recorded in Talks with Dr. Harlan B. Phillips 81 (New York: Reynal & Company, 1960). []
Cite as: Kunal Parker, The Turn to Procedure, JOTWELL (June 13, 2016) (reviewing Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940 (2014)),

The Birth of the Birth Certificate: Age, Child Labor and the Growth of the Administrative State

When I was growing up in New York City, there was a rite of passage that you went through when you turned 14. You got your “working papers.” For a middle class kid, the process was one of your first encounters with the administrative state. You went to the dingy building in downtown Brooklyn that housed the New York State Department of Labor’s Kings County office. There you submitted a form, signed by your parents, along with a copy of your birth certificate. The form itself was a stock item of the postwar, pre-digital bureaucracy: four sheets of stacked, bound, carbonless copy paper (white, yellow, pink, and blue with an instruction to press hard enough to create legible words on the blue copy). The birth certificate was a photocopy – white text on a black background – with a raised seal. The form and the birth certificate were reviewed and stamped by a clerk behind a counter who then returned to you a copy of the form (the pink one, I seem to recall). You now had the permission of the State of New York to be a camp counselor, or to peddle Dove Bars and frozen lemonade from a cart in front of Rockefeller Center

Behind this banal bureaucratic process was over one hundred years of state building, some of it quite familiar. As anyone who remembers their AP American History class will tell you, the substance of the regulatory regime (children can’t work until they’re 14 and even then they are prohibited from industrial labor), and its institutional manifestation (the Department of Labor) are products of the Progressive era campaign against child labor. However, as Susan J. Pearson’s richly detailed article demonstrates, before the political impulse to protect children from the dangers of industrial labor could succeed, the administrative state had to assert its power in another way. The most fundamental obstacle to abolishing child labor was not political resistance from business interests or immigrant families in need of income. Nor was it hostile courts with their concerns about federalism and freedom of contract. The most intransigent barrier to abolishing child labor was the fact that well into the twentieth century, the state had no way of knowing how old somebody was. In a world without state-issued birth certificates, enforcing age-based prohibitions on work was impossible.

This, then, is the story that Pearson tells: how the states and the federal government created the bureaucratic infrastructure to ensure that every child born in the United States had a government-issued birth certificate to verify their age. In nineteenth-century America, she explains, chronological age was not defined with the precision we are used to today. Many Americans “understood their age in approximate terms.” (P. 1150.) This fact was particularly true in immigrant and non-white communities. Consequently, for most Americans, the age at which a child should start working was viewed not as precise boundary (the chronological age of 14, for example), but instead as a contextual calculation related to the economic circumstances of the family and the actual maturity of the child at issue.

In order to make child labor laws work, Progressive reformers had to impose a different conception of age on working families. The evidence that was traditionally used to determine a child’s age, such as parental affidavits, notations in family bibles, or baptismal certificates, was gradually replaced during the first third of the twentieth century by standardized, state-issued birth certificates in which chronological age could be attested to by experts: the doctor, nurse, or midwife who was present at birth. Pearson demonstrates that this transition was not a smooth one. Parents resisted this profound loss of authority over their children. The ultimate judge of a child’s maturity became the government, not than the parents. To do this, states and the federal government had to build out a considerable bureaucracy. Legislation created state and federal child labor agencies that worked with the Census Bureau and state and local health agencies to promote and, ultimately, require birth registration.

As Pearson notes, a definitive determination of chronological age was necessary not only to prevent child labor. It was also a prerequisite for implementation of other Progressive-era reforms such as compulsory schooling and juvenile courts. The same was true of the emergent New Deal welfare state. Age, after all, was the fundamental basis for awarding Social Security payments. Indeed, the significance of the shift that Pearson describes from parental to state control over the definition of a child’s age is what makes her article so important. Like all the best historical writing, it uncovers a historical process obscured by our modern perspective. Our understanding of a person’s age – as defined by an objective measure of the number of times the earth has orbited the sun since that person’s birth – is, in fact, the creation of early twentieth-century reformers intent on furthering particular policy goals. That policy impulse, and the state-building that was required to implement it, favored a particular definition of age so powerfully that we can now scarcely imagine any other definition.

Cite as: Reuel Schiller, The Birth of the Birth Certificate: Age, Child Labor and the Growth of the Administrative State, JOTWELL (May 13, 2016) (reviewing Susan J. Pearson, "Age Ought to be a Fact": The Campaign Against Child Labor and the Rise of the Birth CertificateJ. of Am. Hist. 101 (2015)),

Did Public Interest Lawyers Undermine the New Deal Order?

Paul Sabin, Environmental Law and the End of the New Deal Order, 33 Law & Hist. Rev. 965 (2015).

Paul Sabin’s recent article puts elite liberal lawyers at the center of the story of the demise of the “New Deal order” – that “period of time between the 1930s and 1970s when the federal government, in close partnership with business and labor organizations, greatly expanded its coordination of the national economy and individual industries, as well as its development of natural resources and public infrastructure projects.” (P. 969.) Sabin draws on a wealth of oral histories, interviews, and archival materials to provide an engaging history of public interest environmental lawyers and organizations – including the Environmental Defense Fund, the Center for Law and Social Policy, the Natural Resources Defense Council, and the Sierra Club Legal Defense Fund. These lawyers and law firms challenged New Deal assumptions; in doing so, Sabin argues, they were as key to the fracturing of New Deal-style liberalism as its conservative critics.

Sabin describes how environmental lawyers, like other public interest lawyers in the 1960s, were inspired by the successes of the NAACP and ACLU in using litigation for social change. And while they shared Americans’ growing distrust of government action in the Vietnam War era, they were also specifically influenced by the mid-century critique of administrative governance as slow, rule-bound, unresponsive, and/or corrupt. Agreeing that the New Deal agencies tasked with protecting the public interest had failed to do so, environmental lawyers pointed specifically to the ways in which Americans and their environment were harmed by federal officials’ pursuit of centralized planning and economic growth. These elite lawyers with stellar credentials, who three decades earlier might have pursued their interest in public service through jobs at the agencies and commissions, now sought to become an external check on agency governance.

These lawyers thus turned to the courts – the bane of New Deal policymaking – to challenge government projects and agency orders. As Sabin explains, “public interest law firms sued the government in order to improve its performance, rather than dismantle it. They denounced both government overreach and agency passivity. They questioned government’s representativeness, effectiveness, and expertise. Government, they argued, no longer had a monopoly on scientific and technical knowledge.” (P. 972.) Environmental lawyers demanded administrators include in their decisionmaking process evidence of environmental harm produced by experts outside the agencies. This was a direct response to the various criticisms of the administrative state in the 1950s and 1960s. Many critics charged that administrators were too insulated from the public, while others argued that they were too easily accessible to business interests. Responding to both criticisms, environmental advocates sought to bring environmental concerns into the administrative process. They did so by demanding that judges expand the category of standing to include those suffering aesthetic and environmental injuries. As Congress joined the environmental cause, lawyers also took advantage of new statutory language authorizing citizen suits against agencies and requiring agencies to consider environmental impact statements.

While environmental lawyers succeeded in their specific tasks – halting development projects, questioning chemical usage, and changing administrative law doctrines to ensure greater participation – their approach, Sabin argues, also had unfortunate consequences. First, he suggests, these elite lawyers only envisioned change within the existing legal and political establishment. Relying on legal methods made sense to lawyers, of course, who were “idealistic and hopeful about peaceful social change overseen by the courts. They distinguished themselves from protesters and rioters, and they believed that the system would respond to their legal claims.” (P. 990.) And much of the funding for environmental law firms came from the Ford Foundation, which was enthusiastic about finding a way “to create an ‘antagonist of government’ that would stay clearly within the bounds of the American legal system.” (P. 1001.) At a time when the very idea of a single “public interest” was under attack, these lawyers continued to assume that they could speak for the public. This elite vision of social reform, Sabin argues, restricted the kinds of alliances that lawyers could make and limited the radical potential of environmentalism as a movement.

Second, he suggests, the lawyers’ embrace of an anti-bureaucratic perspective weakened the New Deal order perhaps more than these lawyers had intended. Theirs was “[a] new kind of liberalism—skeptical and distrustful of government, yet still committed to collective action by the state.” (P. 1000.) Environmental lawyers rejected the assumptions of the New Dealers and those of free market conservatives, offering “a third alternative: an informed, active citizenry, represented by professional experts, who would ensure that government agencies pursued the true public interest.” (P. 972.) However, Sabin argues, their criticisms of the administrative state weakened New Deal institutions from one side as conservatives were attacking those same institutions from another. In addition, they “helped drive a wedge into the New Deal political coalition by attacking economic development projects, such as the Alaskan pipeline, that generated jobs for the white, male, working class voters who traditionally supported the Democratic Party.” (P. 1000.)

“Environmental Law and the End of the New Deal Order” is a fascinating case study of the development of environmental law, and the personalities and institutions that shaped it. (Sabin makes clear that these firms developed before, not after, the burst of environmental, health, and safety legislation in the 1970s.) It suggests the need for similarly rich studies of other areas of public interest litigation. While much has been written on civil rights and welfare rights litigation, historians are only now beginning to explore public interest litigation in the administrative state. This article also offers a broader reflection on the relationship between litigation and social change. Sabin explains how these lawyers drew on an already robust trend of public interest litigation and how they adapted it to their own purposes, while making clear both the advantages and disadvantages of their litigation-focused approach. Through an insightful examination of liberal lawyers attempting to redefine the public interest, Sabin contributes not just to scholarship on environmental law and administrative law, but also to a rich body of research on liberalism, anti-statism and the rise of the conservative movement.

Cite as: Joanna Grisinger, Did Public Interest Lawyers Undermine the New Deal Order?, JOTWELL (April 15, 2016) (reviewing Paul Sabin, Environmental Law and the End of the New Deal Order, 33 Law & Hist. Rev. 965 (2015)),

Law and Literature for Legal Historians

Creating Legal Worlds, a new book by Greig Henderson, an English professor at the University of Toronto, is about rhetoric and the law and how story-telling is intrinsic to the law. Henderson revisits famous cases (and introduces readers to new cases) in which judges use a variety of rhetorical techniques to engage in persuasive (and, it turns out, at times, not so persuasive) story-telling.

Legal scholars will find value, especially for teaching, in Henderson’s analysis of judgment-writing as craft. However, I think the book has especial purchase power for legal historians, who can contrast Henderson’s approach to cases with the way they generally approach cases and their context. Rather than emphasizing the details of a case and its surrounding circumstances, Henderson emphasizes the technique of the judge as a writer. He explains the literary and rhetorical techniques that judges use (consciously and unconsciously) in order to paint a scene, play on a presumption or prejudice, generate empathy or reassurance that the right result has been reached with cool, clear and unemotional speech.

Consider, for instance, Henderson’s discussion of the famous Palsgraf case. Palsgraf has been a favorite object of study by legal scholars from John T. Noonan (in Persons and Masks of the Law (1975)) to Richard Posner (Cardozo: A Study in Reputation (1990)). Cardozo, the author of the majority opinion and often considered to be the father of law and literature, is the usual focus of attention – charged with dehumanizing Mrs. Palsgaf (Noonan) or defended against the charge (Posner). Henderson’s chapter offers a completely different perspective. He focuses on Judge Andrews’s dissent, which is filled with analogies, and considers “the perils of analogy” (in which, as Henderson puts it, “there is always the danger of lurking antithesis.” (P. 64.)) Henderson collects together Andrews’s examples, listing “a reckless driver on Broadway, a boy throwing a pebble in a pond, a stream of causation, a murder at Sarajevo, an overturned lantern that burns all Chicago, a negligent chauffeur.” (P. 69.) According to Henderson, the “overall effect of these metastasizing analogies is to deconstruct the very concept of causation he [Andrews] relies on, making everything a question of expediency and common ense.” (P. 69.) Henderson argues that the strategy confuses but then ultimately succeeds “in fashioning an appealing judicial self … a fair and reasonable person grabbling as best he can … trying through analogy after analogy to arrive at a pragmatic criterion.” (P. 70.) Hence, the rhetorical technique (the piling on of analogies) is connected to the judicial solution Andrews offers. What we mean by proximate cause just is “practical politics … [i]t is all a question of expediency … [t]here is little truth to guide us other than common sense.” (P. 71.)

Henderson refers at many points in the book to decisions by the English judge Lord Denning. (He even offers a re-writing of Andrews’s Palsgraf dissent as if it were penned by Denning, offered in the style of Karl Llewellyn’s re-writing of another famous Cardozo decision, Wood v. Lady Lucy Duff-Gordon. (P. 70.)) We are treated to an analysis of how Denning elicits sympathy for “Old Herbert Bundy” in Lloyd’s Bank v. Bundy and hostility toward those enemies of cricket who bring an injunction against a cricket club in Miller v. Jackson. In Miller v. Jackson, Henderson describes the way in which the judge, writing in the 1960s, develops “a nostalgic pastoral vision of an England that is disappearing before Denning’s very eyes.” (P. 54.) He then ties that vision to the trouble Denning got in over racist comments he made during the 1980s about immigrants and black jurors. (Pp. 54-55.) As someone who teaches a lot of Denning’s cases in my first-year contracts class, I find this discussion helpful in identifying a troubling ethnocentric strand in what would seem to be pretty innocuous breach of contract cases. In Jarvis v. Swan Tours and Jackson v. Horizon Holidays, for example, he expresses a special sympathy for travelers in far-away lands who fail to find food, accommodation and even English-language skills up to British standards. The rhetoric in Denning’s decisions can be very persuasive, and it helps to have a way into putting one’s finger on what seems to be happening in these cases, especially where something is slightly off.

The book includes a discussion of Buck v. Bell and Oliver Wendell Holmes Jr.’s famous statement that “[t]hree generations of imbeciles are enough.” (Pp. 33-37.) Henderson uses this infamous case to weigh in on a debate among law and literature scholars as to whether bad or immoral cases can ever be spoken about as aesthetically great. Henderson believes that technique can be kept separate from morality: “Eloquence, as Buck v. Bell illustrates, is no guarantor of virtue.” (P. 37.) He does not refer to Paul Lombardo’s work on the case, which shows how it was feigned and rigged against Carrie Buck from the very beginning. Especially shocking is the role Buck’s own lawyer played in enthusiastically losing her case in a flagrant example of collusion with the doctor and hospital seeking to have her sterilized and the sterilization statute constitutionally upheld. However, this is a good example of the way that a legal case will be of interest to scholars in different sub-fields for different reasons. Henderson uses it as a way to discuss the question of how morality intersects with issues of greatness and literary technique. The historical investigation shows it to be a thoroughly irredeemable and morally bankrupt case.

The audience for this book is first and foremost judges interested in being more self-conscious about their craft. Henderson is involved with the Judicial Writing Program for the Canadian Institute for the Administration of Justice. His message for judges seems to be: Be careful because an “understandable desire to inject humanity and concreteness into judicial writing is sometimes misguided and sometimes impairs rather than enhances its persuasiveness.” (P. 16.) The book discusses at length an infamous 1998 Canadian sexual assault case (R. v. Ewanchuk) in which the judge described a complainant as not wearing “a bonnet and crinolins” when she met the accused, a statement that elicited a firestorm of controversy for the way that it traded in problematic myths about women in rape and sexual assault cases. Henderson offers a range of examples in other chapters drawn from homicide and sexual assault cases, Canadian and American, in which competing accounts of reality by judges involved in trial-level and appellate-level cases undeniably shaped and created that reality; the legal worlds in the title of the book that judges create for themselves; and the “legal worlds in which others must live, worlds that reinterpret the past, delimit the present, and shape the future.” (P. 153.)

The second audience is legal scholars generally interested in a very practical approach to law and literature. Henderson teaches a lot in the book, especially about a range of literary and rhetorical devices. Learning about rhetorical techniques – even familiar “thinking like a lawyer” stock-in-trade devices such as example or analogy, explained from a formal point of view – will make any legal scholar a better reader and teacher of cases. How to see, for instance, the trajectory in a line of cases and what facts and issues are necessary to the legal principle and which are superfluous. Henderson tells us that Cicero called “the heightened capacity to see similarity and difference,” so important in deciphering precedent and evaluating example or analogy in legal reasoning, ingenium. (P. 150.) I usually talk about this to my students in terms of the song “One of these things (is not like the others).” Henderson includes a quote about “analogical reasoning,” as it is called, from a literary critic, who writes that “patterns of opposition and connection [are] probably the basis of thinking itself.” (P. 157.) Thank goodness for Sesame Street!

Law and literature scholars such as Bernadette Meyler have recently called for greater communication and cross-fertilization between legal scholars who are interested in literature and in history.1 Certainly, legal historians often turn to the cases, especially the great cases, which make a kind of common law of the law school curriculum. Henderson approaches cases in a different way, as texts serving a variety of purposes, carefully and often quite subtly crafted by their creators to elicit in their readers certain kinds of reactions. The reaction aimed at can be as various as eliciting sympathy for a plaintiff or invoking nostalgia for a by-gone world that is no longer (if it ever was) shared. England was home to many people who were not reared on a love for and allegiance to cricket. Henderson’s point is that the world in which that person felt unwelcome or the world in which a determination of whether or not a sexual assault took place was influenced by the clothes a woman wore, these are the worlds that judges helped create, a reality they played a role in manufacturing and reinforcing with their words.

A third audience of Henderson’s work is legal historians, who can find here cases that have had their fair share of historical investigation. However, these cases do something different in the hands of a literary scholar, who emphasizes different things than a historian would. Henderson’s focus is less about what is true and false and more about persuasiveness—learning how persuasiveness works, how to recognize its various forms in action, and how to evaluate it. Why is this important for legal historians? Well, literary persuasiveness plays a key role in the reception of a case, what kind of uptake it enjoys, and that in turn influences historical as well as legal assessments of the significance of the case and the larger story the legal historian wants to tell. This is especially true when dealing with a concept like greatness – great cases (e.g. Palsgraf) or great judges (such as Cardozo, Denning, and Holmes). Neither legal nor historical training usually includes training in rhetoric, so learning more about this is helpful, especially when the literary scholar offers a fresh perspective on familiar cases.

I am reminded of the New Yorker cartoon in which a man is out for drinks with a woman to whom he says – “You seem familiar, yet somehow strange. Are you by any chance Canadian?” And it is good for us to shift perspective and see these familiar (and new) cases a little differently. Both history and literature approach the law from an external perspective on the assumption that this will reveal something that it would otherwise be difficult to see. “[S]tory is inescapable,” as Henderson puts it. (P. 29.) This is true for both history and literature. And, as scholars like Meyler have emphasized, it is important for fellow humanities-oriented scholars in law schools to travel together. This means learning how to adopt the lens of the other, at least sometimes and for some purposes. This means being open to analyzing legal cases as literary texts where that is appropriate and to see legal cases as in their historical context where that is important and useful. I recommend Henderson’s book to legal historians as a salutary perspective-shift in which they will find much that is new and much that is “familiar, yet somehow strange” – and worth thinking about.

  1. See Bernadette A. Meyler, Law, Literature, and History: The Love Triangle 5 UC Irvine L. Rev. 365 (2015), available at SSRN. []
Cite as: Angela Fernandez, Law and Literature for Legal Historians, JOTWELL (March 22, 2016) (reviewing Greig Henderson, Creating Legal Worlds: Story and Style in a Culture of Argument (2015)),

Health Care in the Shadow of the Law: The Impact of Abortion Jurisprudence

Johanna Schoen, Abortion After Roe (2015).

The Supreme Court’s latest abortion case, Whole Women’s Health v. Cole, involves a challenge to a Texas law targeting not women seeking abortions but the clinics that provide them. Yet, as Johanna Schoen’s Abortion After Roe reminds us, we know little about how abortion regulations affect those who deliver reproductive health services. Schoen carefully documents how the Court’s abortion jurisprudence has transformed what goes on in American clinics. While historians and legal scholars have often focused on the effect of the Supreme Court’s jurisprudence on access to abortion, Schoen, by focusing on law’s impact on abortion providers, tells a far more nuanced story.

Throughout Abortion After Roe, Schoen focuses on the experience of providers and patients at independent abortion clinics. While the story of Planned Parenthood and other major abortion providers deserves scholarly attention, Schoen persuasively uses the experiences of independent clinics to understand the complex relationship between feminist politics, potential profit, and legal interference that dictated practice at many American clinics. The vast majority of clinics that opened their doors in the 1970s were independent, and by telling their story, Schoen provides a valuable picture of how the medical practice and business of abortion care developed over the course of several decades in an increasingly hostile climate. Independent clinics also often challenged the strategic priorities of the political pro-choice movement. Their experiences expose the disconnect between the reality of abortion care and the rights won and lost by pro-choice lawyers.

She begins in the 1970s, a forgotten heyday for the business of abortion care. With the release of pent-up demand for legal abortion after the Roe decision, entrepreneurs recognized a valuable opportunity. At the same time, feminists frustrated by the apparent sexism of the medical profession pioneered woman-centered forms of care. In describing the founding of the National Abortion Federation (NAF), Schoen sheds light on the difficult partnership between the feminists, physicians, and businessmen creating a new industry. The 1970s also represented a high-water mark for technological and medical innovation in abortion care. Free for the first time from the threat of criminal prosecution, physicians inside and outside the United States developed safer abortion methods.

Schoen shows that it was pro-lifers’ focus on “the aesthetic characteristics of fetal research” that initially prompted the courts to cast a long shadow over abortion practice (P. 72.) After investigating the legality of fetal research at area hospitals in the mid-1970s, Boston prosecutors brought manslaughter charges against Dr. Kenneth Edelin for performing an abortion by hysterotomy, a second-trimester procedure similar to a cesarean section. Prosecutors argued that Edelin had killed a viable baby that was still alive when he separated the placenta and would still be alive if Edelin had immediately removed it from the uterus. Edelin’s conviction was ultimately overturned on appeal, but the threat of legal intervention spooked abortion providers, many of whom began privileging techniques that would eliminate the risk of a live birth during abortion—the contested issue in Edelin. NAF members and other providers later developed and commonly performed saline abortion, a technique that would all but eliminate the possibility of live birth.

The Edelin episode would set a pattern for the decades to come. Judicial involvement frightened off some of the less-committed providers and entrepreneurs unwilling to grapple with legal risk and political unpopularity. However, the possibility of judicial interference encouraged abortion providers to develop their own best practices and internal regulations, often improving the care patients received.

As Schoen shows, providers and patients were hardly passive victims. In the 1970s, providers became aware that saline abortions were often emotionally exhausting for patients and clinic staff. Providers responded by refining dilation and evacuation (D&E), a safer and less taxing procedure. The rise of D&E shows how providers sometimes successfully created room for experimentation, prioritizing “a female patient’s safety and the wellbeing of patients and staff” (P. 123.)

In the 1980s, with the spread of anti-clinic blockades and violence against abortion providers, the gap between abortion politics and medical care grew. Together with major pro-choice organizations, NAF recognized that the major protests launched by Operation Rescue represented an indispensable opportunity to raise money and rally supporters. Clinic providers argued that lobbyists and lawyers’ fixation on preserving a legal right to abortion took the spotlight off the fear experienced by providers and women braving pro-life picket lines.

Conflict between providers and the pro-choice movement came to a head during the partial-birth abortion debate. Pro-choice attorneys and lobbyists argued that physicians performed D&X only in cases of severe abnormality or a threat to the health of the woman. Independent providers characterized this approach as disingenuous and stigmatizing. Calls for more honesty about partial birth abortion ultimately backfired, further fragmenting the pro-choice community and energizing those intent on banning D&X. Nevertheless, in the wake of the partial-birth abortion wars, providers continued working to create a space for abortion counseling and medical innovation that was not so heavily influenced by constitutional doctrine or social-movement politics.

Schoen’s well-paced social, medical, and legal history makes an important contribution to scholarship on the Court’s abortion jurisprudence. But Abortion After Roe is also well worth reading for other reasons. Legal historians have studied the ways in which attorneys shape their clients’ ambitions. Schoen maps out the tangled relationship between providers and the many social-movement members charged with representing them. In Schoen’s story, legal constraints and political pressures inspired providers to develop safer procedures and internal regulations. At the same time, the threat of judicial involvement and political blowback forced providers to abandon certain techniques and tested the relationship between medical professionals and lobbyists, lawyers, and grassroots activists. Abortion After Roe suggests that the connection between law and social change is even messier than many current studies suggest

Schoen illuminates a less familiar price paid by medical professionals and patients for the constitutional victory won in Roe and the social movement politics that followed it. Over time, those living day-to-day with the practice of abortion would hardly recognize the medical procedure that the Supreme Court constitutionalized in 1973. Thoughtfully weaving together the history of law, politics, and medicine, the lessons offered in Abortion After Roe should make a difference to studies of the courts’ role in social change, even beyond the context of reproductive health.

Cite as: Mary Ziegler, Health Care in the Shadow of the Law: The Impact of Abortion Jurisprudence, JOTWELL (January 20, 2016) (reviewing Johanna Schoen, Abortion After Roe (2015)),

Legal Export and the Transformation of American Identity

Today, as a matter of both foreign policy and legal practice, comparative law tends to be a one-way street in the United States. In recent decades, the U.S. has been involved in countless constitution-writing and rule of law projects across the globe. But few foreign frameworks have migrated home, where foreign law is often met with outright judicial and political hostility.

Jedidiah Kroncke, in his learned and incredibly incisive new book, The Futility of Law and Development: China and the Dangers of Exporting American Law, reminds us that this is hardly how American policymakers have always approached the international community. In fact, during the revolutionary period many of the founders like Benjamin Franklin, Thomas Jefferson, and James Madison were avowed legal cosmopolitans, curious to draw from foreign experiences for American republican institutions, including the example of China’s civil service system, national taxation structure, and methods of centralized resource management. Indeed, as late as the Progressive period, a “transatlantic moment” led American reformers–confronting shared problems of industrialization and inequality— to see new European innovations as worthy of replication at home. How did this change and what has it meant for American legal culture and reform politics?

Kroncke argues that this shift was a product of how Americans came to justify their global authority in the first half of the twentieth century. Legal and political elites were at pains to differentiate U.S. power from European imperialism. In the process, they sought to do two things: 1) highlight how unlike European colonizers the U.S. was fundamentally non-colonial and politically respectful of local peoples; and 2) explain nonetheless why Americans deserved global preeminence. In developing their arguments Americans ended up drawing especially from the domestic community most directly involved in overseas endeavors: white religious missionaries.

Against the backdrop of internal industrial strife, the post-Civil War period witnessed a massive religious revival (the “Third Great Awakening”). This revival created a national network of grassroots Protestant churches and organizations interested in spreading American religious and political values across the world. These missionaries viewed the U.S. in exceptionalist and millennial terms—as a nation committed to replacing chaos abroad with peace and tranquility through the promotion of Christian principles (such as those of self-discipline and spiritual self-rule) as well as related liberal legal institutions. Moreover, because of the sheer scope of missionary work during the era, many Americans—including elite policymakers—came to understand the world outside through their books, reports back home, and religious projects.

For such missionaries, the great test case of their redemptive spiritual and legal enterprise was China. China not only had its own extensive civilizational history, but it also lacked any direct imperial overseer. As a consequence, it was a perfect setting for missionaries to “Americanize” and revitalize a once powerful, but now declining nation through practices of legal and cultural export—and to do it without actual formal colonial control.

Over time, an increasingly secularized version of the missionary project came to dominate ideas about the purpose and specialness of American power. Moreover, as such exceptionalism grew, legal export become both a one-way street for U.S. policymakers as well as a critical instrument in the extension of U.S. influence. In all this, Kroncke very convincingly suggests that China remained a key touchstone for legal and political elites, not to mention broader civil society groups. In each given historical era, China served as a site for rehearsing that period’s defining export initiatives. At the same time, the relationship with China also constituted a central lens through which Americans grew to understand their interactions in general with the non-white world.

In developing these arguments, Kroncke’s work does three remarkable things. First, his excavation uncovers a hidden history of today’s rule of law promotion. This hidden history cuts against certain ingrained presumptions that Americans have always been legal exceptionalists. Instead, in highlighting how U.S. views about legal export have shifted, Kroncke emphasizes the relative newness of this brand of exceptionalism and forces scholars to ask why the contemporary vision has diverged so dramatically from the founding one.

Second, the book offers a beautiful reconstruction of the American legal imagination and approach to China. This reconstruction provides a treasure trove of information about the various U.S. legal export projects in the country, highlighted by two wonderful case studies of Frank Goodnow and Roscoe Pound. Kroncke finds in their export efforts a powerful encapsulation of how Americans carried with them to China the (oftentimes deeply contentious) domestic debates over the meaning and value of U.S. legal practices.

And, finally, the book is a sophisticated critical dissection of the drawbacks of American legal export—today as much as in the early twentieth century. It has become almost trite to note the repeated failure of legal export initiatives to succeed on their own terms—from Iraq to China itself. These failures are usually explained as a product of poor intentions and/or poor execution. By contrast, what Kroncke shows is that in a deep sense such failure is the result of the very exceptionalist imagination that has persistently presented the world as a domain for Americanization. Above all, American policymakers failed to come to grips with the complexity and sophistication of local legal customs and commitments to self-determination. In Kroncke’s mind, this has been as a much a loss for the U.S. as for the world, because it has foreclosed the willingness of politicians and lawyers to see such complexity as an invitation for U.S. internal domestic experimentation and renewal.

In all these ways, Kroncke offers a provocative retelling of the history of American legal export, one that no doubt will generate fruitful debate and will have to be reckoned with by legal historians, legal comparativists, and scholars of U.S. foreign policy.

Cite as: Aziz Rana, Legal Export and the Transformation of American Identity, JOTWELL (December 9, 2015) (reviewing Jedidiah Kroncke, The Futility of Law and Development: China and the Dangers of Exporting American Law (Oxford University Press, 2015)),

The World War II Roots of the Modern American Administrative State

Mariano-Florentino Cuéllar, Administrative War, 82 Geo. Wash. L. Rev. 13431445 (2014), available at SSRN.

The study of administration is thriving – so much so that even people outside the field are taking note. A recent review essay in the Boston Review (and a cautionary response by Karen Tani) demonstrate the breadth of this scholarship, which includes studies that push the origins of the administrative state back to the early republic and studies that examine (in a term coined by Sophia Lee) administrative constitutionalism throughout the federal government. The New Deal continues to loom large, however, in research into the expansion and entrenchment of the modern administrative state; according to Mariano-Florentino Cuéllar, this account is incorrect. As he argues, “during the 1930s the federal administrative state remained a pale shadow of its future self.” (P. 1354.) Instead, much as James T. Sparrow argues that World War II made the modern American state, Cuéllar argues that World War II made the modern American administrative state.

Cuéllar describes how pre-World War II agencies were hamstrung by limited powers and limited resources, limits which soon became impractical. World War II changed the political and economic context in which agencies operated, opening the door to legal changes that strengthened the agencies. Mobilization for war required greater administrative capacity, which in turn required more money to pay for agency operations. In response, federal courts expanded agencies’ subpoena powers, which markedly improved agencies’ ability to investigate. Courts also moved from a formalist understanding of the non-delegation doctrine (Schechter) to a functionalist one (Yakus) that legitimated broad congressional delegations of authority to agencies. And Congress enabled mass taxation to pay for expanded administration. (Funding is key to any discussion of administrative capacity; a chart in Cuéllar’s appendix showing the increase in federal employees during the war make this clear.) By giving agencies the tools they needed to endure, Cuéllar argues, wartime actors embedded administrative governance in American political life.

How did such an expansion of the administrative state occur, given the contentious nature of debates over administrative authority only a few years earlier? The wartime context made the legislative and judicial branches more willing to empower the agencies, Cuéllar argues, and the nature of total war meant that existing domestic agencies (like the National Labor Relations Board and the U.S. Department of Agriculture) were as important to the war effort as the Office of Price Administration and the War Production Board. At the same time, however, the Roosevelt White House had learned important lessons from its earlier political battles. Recognizing that the federal government needed both “organizational capacity and legal legitimacy” (P. 1352.) to fight the war, Roosevelt pushed for changes that were “evolutionary instead of revolutionary.” (P. 1387.) He declined to use the war crisis to refight New Deal battles, refusing to seek either government control of industry or full administrative autonomy. And expanding administrative capacity was less controversial than it could have been, given the existing proceduralism of the administrative state. Cuéllar argues – as Dan Ernst has here, and I have here – that even before the Administrative Procedure Act of 1946, agencies were bound by procedural limits, imposed by reviewing courts and by agencies themselves.

The result was a legitimation of the administrative state going forward. Americans found it hard to oppose administrative power, Cuéllar argues, when that power had been central to winning the war. It was particularly hard to oppose administrative power that shied away from the most extreme models and built in participation for business, labor, and consumer interests. Thus, he argues: “However distant the resulting structures were from some abstract ideal response, those structures facilitated staggering increases in production and allowed Americans to harmonize national goals with private interests during the war. It was a sufficient enough workable accommodation that it stuck.” (P. 1436.)

While much of his discussion of wartime dynamics comes from historical monographs, Cuéllar grounds his doctrinal analysis in a broad survey of relevant case law. However, his discussion of the political constraints and ideological concerns that shaped the decision making of the Roosevelt White House is glancing at best. Cuéllar argues that Roosevelt’s approach “accommodated American political, ideological, economic, and legal values and realities”; this is a plausible but bloodless account, since those values and realities are never fleshed out. (P. 1422–23.) Cuéllar also invokes “business,” “labor,” and “Americans” without much explanation of who was in those categories or how their interests were at odds. These criticisms aside, however, Cuéllar does the field a service in reframing the discussion of administrative capacity around World War II and examining wartime’s doctrinal changes across the administrative state.

Cite as: Joanna Grisinger, The World War II Roots of the Modern American Administrative State, JOTWELL (November 11, 2015) (reviewing Mariano-Florentino Cuéllar, Administrative War, 82 Geo. Wash. L. Rev. 1343–1445 (2014), available at SSRN),

Untangling the Relationship between Rights, Federal Power, and Inequality: The Legal Legacy of Reconstruction

“Black lives matter.” When spoken in law schools, these words have had a particular subtext. They expressed outrage at the lives taken in the name of the law, and despair at the distance between our legal ideals and the everyday legal encounters of people like Michael Brown, Eric Garner, and Freddie Gray. In the words of a statement signed by many of my UC Berkeley colleagues, law school communities “struggle to reconcile the constitutional values [taught] in the classroom with the reality that race determines how communities of color experience our legal system.”

Helping our students make sense of this dissonance requires that we bring history into our teaching, and further, that we go beyond stock narratives about the evils of Jim Crow and the victories of the modern civil rights movement. High on my list of teaching aides, going forward, will be Laura F. EdwardsA Legal History of the Civil War and Reconstruction. It offers both a concise overview of an important legal-historical moment and a bold argument. Reconstruction did more than “abolish slavery and bring Confederate states back into the Union,” Edwards explains; it “unsettled the nation’s entire legal order.” (P. 13.) The resulting legal changes encouraged all Americans—not just freed slaves—to see the world around them in terms of individual rights and to champion the value of equality. This is the very same vision that many entering law students carry with them today.

Embedded within this new legal order, however, were seeds of disappointment, resentment, and conflict. The Reconstruction Amendments and related civil rights legislation implied a nation of equal citizens at a time when inequality pervaded American life. Similarly, the new legal order encouraged people to look to the federal government for aid and protection, even though states and localities still provided the bundle of goods, services, and opportunities that gave content to the notion of citizenship. Helping readers see this emergent legal order, complete with its built-in contradictions, is Edwards’ main task. In what follows I’ll emphasize how she so deftly accomplishes her goal and why her success is our gain.

A crucial first move is to disrupt some common assumptions about rights. Americans today rely heavily on the language of rights, using it to discuss everything from mass murder to healthcare to same-sex marriage. Frequently, the specter of the federal government hovers over these conversations, as the assumed guarantor and enforcer of rights claims. Edwards reminds readers that before the Civil War, rights did not operate in the same way. Americans generally looked to state and local governments to define their rights, as part of the larger project of advancing and protecting the public welfare. Perceived rights violations were a matter for local courts, not federal ones, and were adjudicated with an eye towards preserving a locally defined sense of order. With this background, Edwards sets readers up to appreciate the broad significance of the Reconstruction Amendments. The Thirteenth Amendment, in Edwards’ telling, did not simply abolish slavery; it “gave the federal government the power to trump the authority of the states in matters of individual rights.” (P. 88.) The Fourteenth Amendment broke ground in a similar way: by asserting federal authority over the legal status of citizenship and by characterizing citizens’ rights as a matter federal concern. Of course, neither of these amendments, nor the Fifteenth Amendment, actually required the states to extend particular civil and political rights to their residents, but by establishing the federal government as the enforcer of a new non-discrimination guarantee, they fundamentally reconfigured individuals’ relationships to the authorities around them.

Edwards’ second key move is to show, as only a social historian could, how these formal changes affected real people. Lots of scholars have written about the consequences of the Reconstruction Amendments, but often their gaze has been set on the civil rights gains of the mid-to-late twentieth century. They have tended to portray the intervening decades as a time when, thanks to a hostile Supreme Court, the transformative potential of the Reconstruction Amendments was inaccessible to the people who most needed it. While acknowledging the narrowing effect of Supreme Court decisions, Edwards directs readers’ attention to the new dynamics that the Reconstruction Amendments nonetheless created at the ground level. Ordinary African Americans, she finds, “stretched” the new “framework of rights,” to cover education, government jobs, and access to public venues. (Pp. 131-32.) Women and wage workers showed similar imagination. White men, meanwhile, sometimes responded with extralegal violence. Before the Civil War, Edwards explains, white men’s privileged legal status was based on their “rights over those without rights,” such as their slaves and wives. (P. 125.) A world in which women and racial minorities possessed legal rights—rights tied to federal authority—was a changed world indeed, even when those rights remained more theoretical than real.

Probing the gap between theory and reality is Edwards’ third important move. Her key point here is that from the start (before the Supreme Court got involved), the Reconstruction Amendments created the conditions for deep and enduring conflict. They did so by announcing new reigning principles without “alter[ing] the logic that structured so much of American law,” a logic that “subordinated all people of color, all women, and all working people.” (P. 149.) Inspired by the Reconstruction Amendments, some Americans attempted to reform this wider legal universe—for example, the doctrines governing marriage, employment relationships, and real property—but such reforms generally proceeded slowly, in a piecemeal fashion. Phrased differently, Edwards reminds readers that Reconstruction was not only a political project but also a legal project, and that the latter rippled through the legal landscape long after the political winds had shifted.

In the end, this is a book about great changes and changes that were never great enough. One thing that had not changed by the end of the nineteenth century, Edwards emphasizes, was structural inequality. The new legal order had enabled Americans to perceive race, class, and gender inequality as injustice and to call upon the federal government for help, but that same legal order channeled dissent into fights to define and protect individual rights, and thereby away from structural solutions.

Edwards’ historical critique could lead readers to take a dark view of the present. It need not. While surely inspired by the promise of the Reconstruction Amendments, the recent insistence that “Black lives matter” is notable for finally escaping the limiting frame that Edwards has described. While protesters have welcomed the help of the federal government, they have directed their energies largely at local authorities—the ones who continue to control many Americans’ sense of belonging (or lack thereof) in the broader political community. And while protesters have decried particular civil rights violations, they have resisted efforts to individualize their grievances. Theirs, like Edwards’, is a narrative of systemic racism, demanding the sort of systemic legal changes that the abolition of slavery once ushered in.

Cite as: Karen Tani, Untangling the Relationship between Rights, Federal Power, and Inequality: The Legal Legacy of Reconstruction, JOTWELL (July 31, 2015) (reviewing Laura Edwards, A Legal History of the Civil War and Reconstruction: A Nation of Rights (2015)),

To Enumerate or Not To Enumerate: A Theory of Congressional “Great Powers”

Daniel Rice, Territorial Annexation as a "Great Power", 64 Duke L.J. 717 (2015).

I have a soft spot for any argument that tends to show the relevance of long-settled constitutional controversies over territorial annexation to hotly debated current events. Even so, I wouldn’t write about this piece if I didn’t think it was well worth reading regardless of how much one cares about the United States’ imperial adventures of over a century ago—or about any given headline today, for that matter. The piece is a student Note by Daniel Rice in a recent issue of the Duke Law Review entitled Territorial Annexation as a “Great Power.” The annexations in question are those of Texas in 1845 and Hawaii in 1898—statutory annexations accomplished by Congressional joint resolution instead of by treaty. And the current event is Supreme Court’s decision in NFIB v. Sebelius in 2012. Rice’s Note makes a convincing case that the basic significance of the healthcare decision cannot be properly understood without a solid grasp of the debates around the constitutionality of Texas’ and Hawaii’s annexation. As Rice describes the evolution of doctrine on Congressional power and the Necessary and Proper Clause from McCulloch v. Maryland to NFIB v. Sebelius, it simply isn’t possible to get from the former to the latter, and fully understand where we’ve been and where we’re headed, without stopping to consider nineteenth-century territorial expansion.

Rice’s Note contributes to the debate on Chief Justice Roberts’ claim in NFIB v. Sebelius that, as Rice paraphrases it, “some powers are too important to be exercised merely through implication, even if they might be the most convenient means imaginable for executing Congress’ enumerated powers. These so-called ‘great powers’ are off-limits to Congress unless the Constitution specifically mentions them.” (P. 718.) Applying what Rice describes as this “conceptual bombshell” to the Affordable Care Act’s minimum-coverage provision, Roberts explained that the power to require individuals either to purchase health care or pay a fine—“the ability to create commerce, rather than regulate preexisting commerce” (again in Rice’s words)—qualifies as a “great power,” that is, a power “incapable of being claimed inferentially.” (P 720.)

Although the idea of “great substantive and independent powers” features prominently, and in those words, in Chief Justice Marshall’s opinion in the foundational McCulloch v. Maryland (1819), the phrase appears in only two pre-NFIB v. Sebelius cases decided since McCulloch. As a result, Rice observes, Roberts’ invocation of it seemed to come out of nowhere. Critics responded with skepticism concerning the workability of the concept: What counts as a “great power”? Why? How would we know? But Rice argues that whatever the answers turn out to be, we won’t find them using keyword searches. Instead, Rice proposes that we start by examining a power we all surely agree counts as a “great substantive and independent” one: the power to annex foreign territory.

Rice’s basic insight is simple and powerful: “[T]he annexation of foreign territory is exactly the sort of power that is too important to be left to implication through the Necessary and Proper Clause.” (P. 722.) Obvious, right? Equally obvious, the power to annex foreign territory appears nowhere on the list of Congress’ enumerated powers. Yet Congress annexed both Texas and Hawaii statutorily, by joint resolution; unlike other foreign territory before and after, these territories were not acquired by treaty (because, in a nutshell, the votes for a treaty weren’t there). Having identified a power that most people would likely agree counts as “great,” Rice briefly reviews the relevant case law (such as it is), before turning his attention to more fruitful material: the congressional debates on the annexations of Texas and Hawaii. As Rice shows, these debates featured “great-powers rhetoric” (P. 723) and therefore constitute a rich source of nonjudicial constitutional interpretation of the concept.

Rice’s discussion of these debates and their implications for Roberts’ view in NFIB v. Sebelius is a pleasure to read: descriptively elegant, analytically convincing, thoroughly informed. Moving easily from historical materials to current case law and back, Rice weaves McCulloch, Texas, Hawaii, and NFIB v. Sebelius into a coherent doctrinal arc. Teachers of first-year constitutional law who read Rice’s Note will be left wondering how to fit the annexations of Texas and Hawaii into a syllabus that is already so bursting at the seams that most of what’s on it has been crammed into it by aggressive editing. One cannot truly grapple with the implications of NFIB v. Sebelius, or even more ambitiously, think clearly at all about the scope of Congressional powers, without first examining the “great” power to annex foreign territory that Congress exercised when it took the dramatic steps of annexing first Texas and then Hawaii to the United States.

Rice’s conclusion is equally compelling, and refreshingly straightforward: If the annexation of foreign territory is too great a power to be inferred from another power, then the great-power doctrine “simply cannot be applied consistently.” (P. 723.) There—he said it. Before wrapping things up, though, he gives us just a little more, teeing up the first step in the next stage of the inquiry. Circling back around to the question of whether there is any Supreme Court case law on point, he once again overcomes the obstacle of the missing keywords: “It seems extremely improbable that a structural principle so theoretically sensible, so substantiated by Founding-era legal authorities, must have taken a two-hundred-year vacation after McCulloch merely because the phrase ‘great substantive and independent’ yields almost no search results.” (P. 763.) To prove the point, he points us in the direction of a plausible next step in our effort to understand the scope and content of the concept of a “great substantive and independent” power: Afroyim v. Rusk, the 1967 Supreme Court decision holding that U.S. citizens may not be stripped of their citizenship involuntarily. Surely involuntary expatriation is a great power as defined by Roberts—one simply too important to be inferred, right? The Court’s decision in Afroyim v. Rusk confirms that instinct.

And yet the turn to the topic of citizenship at the close of the Note brings to mind the related jurisprudence on immigration, which in contrast to cases on citizenship like Afroyim is a fertile source of decisions upholding, not striking down, exercises of powers too great to be inferred, yet nowhere enumerated. Once Afroyim has been invoked, surely the next step in our inquiry into the scope and content of “great powers” will be the Court’s foundational decision in Chae Chan Ping v. United States (the Chinese Exclusion Case), right? The 1889 Chinese Exclusion Case upheld Congress’ power to exclude aliens from its sovereign territory. We agree that the power to exclude aliens is a “great power,” yes? Yet not only was the Court in the Chinese Exclusion Case undaunted by its absence from Article I, section 8, but it grounded its decision instead on the proposition that the power to exclude is, quite simply, essential to the existence and survival of the nation and, therefore, must be “inherent in sovereignty.” In other words… it’s a power too great to enumerate? Are we thus left with not one but two kinds of great powers—those too great to enumerate, and those too great not to enumerate? Could be: as Rice put it in an earlier passage discussing the view that the power of territorial annexation is, like the power to exclude aliens, “inherent in sovereignty,” “when a congressional power can be defended only on such flimsy extraconstitutional grounds” as that of being “inherent in sovereignty,” “it is an especially fine candidate for great-power status.” (P. 723.) If the result of our inquiry will be that we have two apparently irreconcilable doctrinal lines on great powers—those too great to enumerate and those too great not to enumerate—then I believe we would all benefit if Rice decides to take up the project of making sense of it all.

Cite as: Christina Duffy Ponsa, To Enumerate or Not To Enumerate: A Theory of Congressional “Great Powers”, JOTWELL (June 22, 2015) (reviewing Daniel Rice, Territorial Annexation as a "Great Power", 64 Duke L.J. 717 (2015)),