Jan 21, 2025 Samy Ayoub
Islamic legal theory places great importance on the distinction between general and specific language (al-ʿāmm wa al-khāṣṣ). This new article by Omar Farahat draws on the philosophy of law to distinguish between internal and external generality. Internal generality refers to how the law maintains its coherence and intellectual consistency, while external generality deals with how the law applies to different social situations. These are analytical tools used to understand Islamic legal principles and their application. They primarily refer to the way Islamic legal principles are articulated and the scope of their applicability.
Internal generality refers to the universality of Islamic legal principles within the Muslim community such as the obligation to perform daily prayers. These rules imply that a particular legal principle is meant to apply to all Muslims, regardless of their specific social, geographical, or cultural circumstances, provided they meet the conditions of the rule. External generality refers to the applicability or relevance of Islamic legal principles beyond the Muslim community, often in interactions with non-Muslims or in multi-religious contexts. It considers how Islamic principles are communicated or enforced in situations involving non-Muslims or international matters. For example, the principle of upholding contracts applies in dealings with both Muslims and non-Muslims.
Farahat discusses how generality of rules and their exceptions in Islamic legal theory promoted the inner morality of Islamic law. General rules aim to apply broadly, while exceptions provide necessary flexibility. Both generality and specificity play a critical role in ensuring that the law remains coherent and adaptable to different circumstances.
Farahat argues that a central aim of debates on generality and exception in Islamic legal theory was to maintain a coherent relationship between intent, language, and norms. The article highlights the theological underpinnings of these debates, particularly how jurists viewed the relationship between divine intent and the language of legal texts.
Farahat examines how general and specific expressions are discussed by two influential sixth/twelfth century jurist-theologians from different juristic and theological backgrounds: the Shāfiʿī-Ashʿarī Abū Ḥāmid al-Ghazālī (d. 1111 C.E./505 A.H.) and the Central Asian Ḥanafī-Māturīdī ʿAlāʾ al-Dīn al-Samarqandī (d. 1145 C.E./539 A.H.). Farahat maintains that these two influential jurists approached the generality-specificity question from different theological perspectives but reached similar practical conclusions about how legal norms should be formulated.
The jurisprudential approaches of al-Ghazālī and al-Samarqandī reflected their views on the relationship between revealed or legislative language and the Legislator (God). First, al-Ghazālī–—representing the Shāfiʿī-Ashʿarī tradition––viewed law as fundamentally rooted in language. He believed that the jurist’s role was to analyze the language of the law without directly interpreting divine intent.
For al-Ghazālī, generality and specificity were features of language rather than reflections of divine will. He argued that general language should usually be taken at face value unless there were clear indicators that a specific exception applied. Al-Ghazālī positioned the law squarely within the realm of language, detaching it from divine intent, thereby making the jurist’s role purely one of language analysis. This perspective led him to view the generality and specificity of norms as outcomes of particular linguistic investigations, with exceptions seen as mere reflections of the linguistic boundaries of a rule.
On the other hand, al-Samarqandī––from the Ḥanafī-Māturīdī school––took a more intent-focused approach. He assumed a clearer division of labor: norms are embedded in divine intent, while language points to that intent. Thus, the juristic formulation of norms becomes an effort to mirror divine intent in terms of generality and specificity. Al-Samarqandī considered divine intent, however elusive, as the source of revelation. He believed that while general language indicated plurality, it could be subject to specification, and the jurist must carefully discern divine intent in applying general rules.
Farahat concludes that debates among scholars in classical Islamic legal theory were pivotal in bridging theological and practical concerns. These discussions were integral to developing coherent models for deriving normative pronouncements from revealed language. Their models sought to interweave divine speech and human conduct as key to the process of legal creation.
Classical Muslim scholars focused on ensuring that legal norms were internally consistent and aligned with divine will. Farahat explains that, contrary to the premodern jurist-theologians, modern reformists rely on purely hermeneutical techniques as a tool for reform to introduce legal change and suggests that this perspective is not a generative exercise. This article contributes to a deeper understanding and appreciation of how Islamic legal scholars grappled with linguistic and theological questions to produce a vision of law.
Farahat’s contribution challenges the assumptions underlying contemporary approaches in both the legal academy and normative calls by reformists for revival and renewal. He demonstrates how classical Islamic legal theorists were concerned with bridging historical, theological, and practical matters while articulating a vision of law in society. Farahat shows how, in contrast, modern textual approaches suffer from poverty in their conceptual premises. He invites researchers to reject the ahistorical and essentialist notions of text and discipline.
In these discourses, Islamic legal theory is confined to modern legal notions of textual authority rather than the dynamic, God-centric approach of pre-modern Islamic legal thought. Farahat’s goal is to integrate Islamic legal theory into broader socio-political, economic, and moral theories that address modern realities rather than reifying historical disciplines or texts.
Nov 28, 2024 Thomas J. McSweeney
We are not used to thinking of medieval people as innovative or forward-looking. The Middle Ages have been constructed as the quintessential backward-looking era, and this affects the way we think about medieval law. One of the grand narratives of medieval law is that early medieval Europe was governed by a customary law that treated past practice as normative. To medieval people, the “good, old law” was good precisely because it was old, to the extent that, even when medieval people created new law, they justified it by claiming it was old. In The Time of Custom and the Medieval Myth of Ancient Customary Law, Ada Kuskowski challenges the assumption that medieval people looked to the past for legal authority and argues that medieval people most often associated custom with the present, not the past, and treated it as something that could change, often quite quickly.
Kuskowski’s piece does two things: first, it surveys writing about custom between Late Antiquity and the fourteenth century to show that there was a wide range of discourses about the way customary law related to time. The leges written in the kingdoms that succeeded the Western Roman empire were held up by jurists and scholars from the sixteenth to the nineteenth centuries as written statements of ancient Germanic custom. Kuskowski shows that in these texts “[t]he old and customary was neither good nor desirable…” (P. 162). The texts instead present themselves as projects to update, improve, and renovate the law.
Notable is Kuskowski’s discussion of the French coutumiers. The coutumiers present themselves as discussions of customary law, usually of a particular region, and Kuskowski argues persuasively that they were not bound to any idea that custom needed to be old to be good. Indeed, they usually presented their custom not as a thing of the past, but as a thing of the present. Custom is, at times, described as “old” in the coutumiers, but is also at times described as “new,” “current,” and even “modern” (P. 172, Pp. 174-175). The authors of the coutumiers saw their texts not as recording what had always been done, but as recording the current practice in a time of rapid change.
It is not, however, that medieval people never thought of age as conferring authority; the “good, old law” was not solely invented by historians. Medieval scholars of Roman and canon law, writing from the twelfth century onwards, became interested in custom as a category of binding norms. They were particularly interested in the question of what made a custom binding. A common theme in their writings was that a legitimate and binding custom was something that had existed for a long time, either a quantified period of ten, twenty, thirty, or forty years, or from “time immemorial.”
Indeed, Kuskowski shows that the idea of “time immemorial,” which became so important in English law, only appears in discourse about custom starting in the twelfth century. Far from being evidence of a medieval “customary mindset,” it was an innovation introduced by university-trained jurists. The coutumier authors started to justify their customs in terms of antiquity from the turn of the fourteenth century, and then it was clearly because people who had been trained in Roman and canon law were importing the discourse of the good, old law from the debates within those fields. In emphasizing the idea that custom is given normative force by its age, scholars have been reproducing the rhetoric of the civilians and canonists, who were actively trying to distinguish custom from the lex they studied.
Second, the article explains how the notion that custom derived its authority from its antiquity became such a pervasive theme in the historical literature on the Middle Ages. Kuskowski tells the story of how medieval custom was constructed as backward-looking, particularly in the scholarship of the nineteenth and early twentieth centuries, in opposition to modernity. Kuskowski takes us from the sixteenth century to the twentieth, explaining how various political, social, and philosophical agendas reinforced this idea. In the nineteenth century, for instance, the historical school of jurisprudence and its emphasis on discovering the spirit of a nation through its ancient laws made customary law into “a primitive but exalted origin of the national heritage” (P. 151).
But at the same time, other currents in European thought were treating custom as a “superseded relic of the past” (P. 151). Enlightenment thinkers presented custom as an archaic and inherently irrational holdover of an earlier era that needed to be swept away by rational legislation. All of this led to a view of custom that, by the beginning of the twentieth century, treated it as, on the one hand, primitive and tradition-bound, and, on the other hand, as a revered relic, symbolic of the nation. Custom could be celebrated, but ultimately had to be superseded.
One of the most significant contributions Kuskowski makes in the article is to show the mechanisms by which these ideas about custom, based on normative commitments most scholars no longer share, slipped into modern scholarship. She traces this to the work of Fritz Kern who, in the early twentieth century, sanitized these nineteenth-century ideas about custom by taking them out of the nationalist and colonialist discourses of the nineteenth century. He reframed discourses about medieval custom in terms that historians of later generations could accept and, in the process, created what Kuskowski calls a “neutralized primitive custom” (P. 152). These ideas were then taken up, in this new form, in seminal works of the twentieth century, such as Michael Clanchy’s Remembering the Past and the Good, Old Law.
The Time of Custom challenges the way we think about customary law as a category. Customary law need not be tradition-bound and backward-looking. But the article also makes a broader point about how we think about the Middle Ages. People still view the Middle Ages as a period when people were backward-looking and tradition-bound. Kuskowski demonstrates that even sophisticated scholars of the Middle Ages, who deplore these kinds of characterizations of the period, still, at times, unconsciously reproduce them in their work. Kuskowski’s work on custom is an important corrective. By showing that custom, a quintessential example of the traditional and backward-looking, could be associated with innovation and rapid change, Kuskowski is challenging some of the most fundamental stereotypes about the Middle Ages as a period. Medieval people thought about themselves as updating, renewing, and even striking out in new directions.
Nov 4, 2024 Christopher W. Schmidt
In The Taft Court: Making Law for a Divided Nation, 1921–1930, the latest addition to the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Robert Post offers a masterclass of legal analysis and historical scholarship. Admirers of Post’s scholarship will find in this book yet more evidence of his rare skill for illuminating the nuances of legal doctrine and identifying the social forces and ideas that explain and animate that doctrine. The Taft Court also gives Post an opportunity to demonstrate his equally admirable skill at synthesizing massive amounts of research material into an engaging and compelling historical narrative—no small an achievement for a volume that comes in at over 1500 pages.
How does he pull off the trick of making a lengthy, serious work of scholarship an inviting experience for the reader? It helps that Post writes so clearly, even when navigating complex areas of the law. He also leans into the biographies of the members of the Taft Court, crafting subtle, sensitive portraits of not only the famous justices, such as Holmes, William Howard Taft, and Louis Brandeis, but also the infamous (the irascible racist James McReynolds) and those who have been largely forgotten. No one is better than Post at the difficult task of connecting biography and jurisprudence.
Perhaps most importantly, Post makes creative and effective choices about organizing and presenting his material. He puts most of his discussion of scholarly debates and historiography in endnotes, allowing him to keep his prose accessible and to center the reader’s attention on the words and actions of the historical actors. The overall structure of the volume is nicely attuned to the reader’s convenience. After beginning with chapters introducing each of the Taft Court justices, Post organizes the remainder of the volume topically. Early chapters explore Taft’s contributions to modernizing the Supreme Court and the institutional character of the Court in this period. Post then breaks down the Taft Court’s cases into four broad categories: social and economic legislation; prohibition; federalism; and labor and race.
The completist will find in each of the forty-three chapters countless insights built upon exhaustive historical research. But the volume is also thoroughly rewarding for more time-pressed readers who chooses to focus their attention on particular personalities and topics.
The central theme of The Taft Court—and a central theme of Post’s scholarship across the years—is that to understand the formation and development of judicial doctrine one must pay carefully attention to cultural phenomena and political developments outside the courts. The Taft Court’s jurisprudence, Post explains, was “fashioned in continuous dialogue with the popular preconceptions of its era” (P. xxv). This fact helps explain the distinctive challenges the Court faced. It’s also why the Taft Court’s work has been misunderstood, Post argues.
For the 1920s was a period of “intense ambivalence.” It was a time of technological innovation, with radio and cars transforming American life. It was a time of artistic experimentation. It was also a time of Prohibition, harsh nativism, and resurgent religious fundamentalism. The Taft Court, Post explains, was “charged with the thankless task of constructing law for a society that was deeply confused about what it wanted” (P. xxvi).
Post illuminates these crosscurrents of culture and law by organizing the justices of the Taft Court into adherents of four “narratives” about the meaning of constitutional law. One narrative understood custom as the master principle of constitutional law. Under this approach, the task of the judge was to translate historically durable practices and commitments into constitutional principle and then apply these principles as constraints on novel government policy. As the exemplar of this approach, Post presents McReynolds, the most uncompromising of the Court’s conservatives.
Chief Justice Taft often allied with this group, but he arrived at his judicial conservatism through a vision of constitutional law as dedicated to economic prosperity. This approach elevated property rights and freedom to contract and cast a skeptical eye on regulatory policy that might constrain economic growth and investment.
Holmes, by contrast, eschewed any judicial role in discerning fundamental constitutional principles. Under this positivist approach, the primary role of the judge in constitutional cases was to defer to the laws passed by majoritarian institutions. Only in limited and extraordinary circumstances would the courts impose constitutional limitations on the will of the people.
Holmes famously stood alongside Justice Brandeis in many of the most significant constitutional disputes of the Taft Court era, but the two men brought sharply different visions of the purpose of constitutional law. In contrast to Holmes’ skepticism toward judicially protected constitutional principles, Brandeis believed the essential task of constitutional law was the promotion and protection of democracy. “Our objective,” Brandeis wrote, “is the making of men and women who shall be free, self-respecting members of a democracy” (P. 313). For Brandeis, Post writes, judicial deference derived from a “moral respect for democracy.” Post’s portrait of Holmes is sensitive and thoughtful. His portrait of Brandeis as a democratic visionary is inspiring.
As the Taft Court struggled to respond to the ambivalent historical moment in which it operated, proponents of these four narratives came together and pushed apart, leaving behind a constitutional legacy that modern scholars have too often mischaracterized or underestimated or simply forgotten. Post offers a convincing case that, taken as a whole, the Taft Court did an admirable job at this transitional moment—recognizing that old constitutional veracities were no longer tenable, but also attempting to control the pace and scope of the change that was happening. In his thoughtful and thought-provoking portrait of a Court stuck between two constitutional worlds, Post has produced a masterpiece of legal historical scholarship.
Sep 30, 2024 Allison Brownell Tirres
Dov Fox & Mary Ziegler,
The Lost History of “History and Tradition,
” 98
S. Cal. L. Rev. __ (forthcoming, 2025), available at
SSRN (May 5, 2024).
With its decision in Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court overruled five decades of precedent guaranteeing a constitutional right to abortion, on the basis that such right was not supported by “history and tradition.” The Court has utilized this same rationale in other recent high-profile, and highly controversial, rulings. Conservatives on the Court claim that the lens of “history and tradition” is neutral, objective, and apolitical, unlike other modes of constitutional interpretation.
Many constitutional law scholars and legal historians are skeptical, to put it mildly, of the “history and tradition” approach. They argue that this method is just as susceptible to subjectivity and political manipulation. After all, whose history will one take into account, and what traditions? When does the historical query begin, and when does it end? The Court’s conservative turn has spurred a proliferation of scholarly work that challenges or seeks to reframe the judiciary’s use of history in constitutional interpretation. In a thought-provoking addition to this canon, Dov Fox and Mary Ziegler ask us to consider the history of the “history and tradition” test itself, to fascinating result. In The Lost History of “History and Tradition,” they demonstrate how the Court’s recent formulation of the test is just that: an intentional reframing of an interpretive tool that, in various forms, has been used by courts at least since the late nineteenth century.
The article’s primary historical contribution is to show that the Roberts Court iteration of “history and tradition,” which conservative justices praise as neutral, apolitical, and objective, is itself the product of social movement engineering aimed at finding common ground – and thus achieving political results – among conservative legal groups in the 1980s. This current formulation, which the authors call “entrenched traditionalism,” is actually a departure from a much longer-standing test that preceded it. That version, which the authors refer to as “evolving traditionalism,” is typified by Justice John Marshall Harlan’s dissent in Poe v. Ullman (1961), in which Harlan insisted that “tradition” is understood to be “a living thing.” Such a notion runs counter to the Court’s current framing of “history and tradition,” yet is truer to what those concepts have meant for most of the twentieth century.
Fox and Ziegler date the origins of the evolving tradition test to the 1920s and 1930s, when courts began to grapple in earnest with the question of whether the Bill of Rights applied to state and local governments. The characterization and use of history and tradition in these incorporation cases varied, but a common theme emerged: tradition could change over time, and judges did not have to limit themselves to viewing traditions as frozen at the time of ratification. In other words, they should look not just backward to the time of ratification (of either the Constitution or subsequent amendments), but also forward for evidence of shifting social practices post-ratification.
This understanding of the evolving nature of tradition became even more accepted in the 1960s and 1970s in cases pertaining to unenumerated rights, such as those dealing with contraception, abortion, and family privacy. The authors show how both proponents and opponents of reproductive rights framed their arguments using the evolving tradition lens. Fetal rights advocates, for example, argued (ultimately unpersuasively) that courts should take into account a growing recognition of the rights of the unborn, while abortion rights advocates made a similar argument for shifting social practices and widespread social acceptance around the termination of pregnancy.
In the early 1980s, however, a conservative legal movement began to coalesce around a much more rigid definition of the “history and tradition” test. Drawing on original archival research, the authors show how legal groups, including the Federalist Society, the Rutherford Institute, and the Alliance Defending Freedom, were united in certain aims but conflicted in others. While the Federalist Society turned to textualism and originalism as preferred interpretative tools, these methods did not necessarily achieve what conservative Christian lawyers sought, which was an approach that would prioritize Christian dogma and heritage in readings of the Constitution. It was also hard to see how an argument for fetal personhood – one of these groups’ primary aims – would be supported by either textualism or originalism.
Enter “history and tradition,” but of a particularly rigid variety. Members of these diverse conservative groups found that a “history and tradition” test that was restricted to the ratification era, and no further, could bridge divides within the movement. As the authors note, this turn was “a way to reiterate shared commitments to judicial restraint while codifying deeply held beliefs and values on subjects ranging from religious freedom to abortion.” (P. 46.)
In its most recent cases, the Court’s conservative majority has relied on this entrenched tradition test, one that sets a fixed ending point at ratification itself and looks no further. This helps to explain why the Court in Dobbs limits the query to “history and tradition” at the time of ratification of the Fourteenth Amendment, ignoring social practices and legal developments that followed in the century and a half after, including fifty years of accepted constitutional precedent.
Conservatives on the Court have also set out their own story of the test’s origins. In his majority opinion in Dobbs, Justice Samuel Alito portrays this version of “history and tradition” as a corrective to judicial overreach, and he dates its emergence to the 1997 assisted-suicide decision in Washington v. Glucksburg. Fox and Ziegler’s research provides an important rejoinder to this claim, demonstrating that the Court’s reformulation of the test was born instead out of years of social movement conflict. As they show, it was the product of an intentional effort by conservative lawyers and activists to achieve specific political ends by altering the lens of interpretation, rather than – as Alito and others claim – the product of a neutral, apolitical quest for objectivity. As they note, pinning the test’s origin to Glucksberg and its progeny may be a compelling way to tell the story, but it is not true.
In an intriguing final section, Fox and Ziegler posit that the evolving tradition model is not only more established in our constitutional history but also has the constructive potential to bridge the divide between the two opposite poles of constitutional interpretation today: originalism and living constitutionalism. They show how evolving traditionalism can avoid some of the risks of either being too rigid (originalism) or too loose (living constitutionalism) in approaching constitutional rights. They further consider how the evolving and entrenched approaches would yield different outcomes if applied to modern-day contested rights, including aid-in-dying, gun rights, fetal rights, and gender-affirming care. This thought experiment shows that evolving traditionalism has much to offer as an interpretive tool. The article thus provides important contributions both for the history of constitutional jurisprudence and for contemporary constitutional analysis.
Sep 13, 2024 Sara Mayeux
Frequently I drink iced coffee at a local shop in my Tennessee neighborhood. I could pay with cash, but most often I hand over a credit card issued by a New York corporation (though the sign-up paperwork came from Utah), and later I pay the bill using funds in my checking account at a California bank (which funds I can also access with a Visa-branded debit card, which I could alternatively have used to buy the coffee). In the five minutes it takes to buy a drink in Nashville, both I and the vendor participate a web of financial transactions and legal agreements with banks, corporations, and sub-entities headquartered around the country, both of us potentially paying interest and fees at each node along the way.
How did routine purchases become so complicated? As meticulously chronicled in Plastic Capitalism, the way I pay in 2024 required decades of technological, legal, and policy change to become part of everyday life. The book is not merely a narration of the rise of credit cards, however, although that would be fascinating enough. Blending legal, political, and business history, Sean H. Vanatta uses the card industry as a case study in the eclipse of New Deal liberalism and the erosion of what Vanatta calls “the place-based regulatory order” (P. 292).
Political historians have written extensively about how New Deal-style economic regulation gave way to neoliberalism and deregulation. Plastic Capitalism adds to that literature by providing an especially granular look at the role of legal history in the shift, and by attending to state-level legislative debates and court cases in addition to Congress and federal agencies. This approach presents deregulation as a longer, more gradual and iterative process than is sometimes implied by timelines of congressional enactments.
Plastic Capitalism begins with an overview of the New Deal regulatory framework. That framework was characterized by limits on banking—geographic restrictions, industry silos, and price caps—as well as by a structural arrangement that Vanatta terms “financial federalism.” Depression-era reforms introduced federal deposit insurance and other forms of government backing but nevertheless “preserved the existing structure of primarily small, local banks” (P. 15). Banks remained prohibited from branching across state lines, and the states retained an important regulatory role, particularly with regard to interest rates on loans.
In subsequent chapters, Plastic Capitalism reconstructs how banks innovated new products and legal arguments to pursue profits within (and sometimes around) those regulatory limits. The reader learns about department store credit, travel cards, how metal charge plates became plastic cards, and the buildout of payment card interchange networks, with colorful anecdotes along the way—but also clear explanations of exactly how different forms of consumer lending were structured legally, financially, and even materially.
Interchange networks proved pivotal in transforming credit from localized service into free-floating commodity. Banks began administering small-scale charge account programs within their communities mainly as a service for local retailers. By the 1960s, some bankers had begun to reimagine the charge account as a standalone profitable product that could be marketed directly to consumers, offering revolving credit at relatively high interest rates. Still, even the pioneering BankAmericard, launched in 1958, was initially a regional California offering; Bank of America advertised “statewide shopping convenience” (P. 84, emphasis in original).
Then, Bank of America began licensing its card technology to banks in other states and developing what became a national and ultimately international payment network. BankAmericard was eventually rebranded as Visa (and a rival, Master Charge, became MasterCard). Formally, merchants were recruited, and consumers were issued cards by local banks. But consumers increasingly “associated their credit with the network,” and experienced cards as a deracinated payment technology rather than a loan from a neighborhood banker, especially as banks adopted the practice of mass-mailing unsolicited cards to prospective customers (P. 107).
Credit cards raised novel legal questions. At the time, most states imposed usury limits on money loans; now, attorneys had to litigate whether those laws already applied to credit cards, and legislators debated whether states should specifically regulate credit card interest rates. Given the new varieties of fraud facilitated by cards, policymakers confronted where to locate liability for unauthorized purchases, and whether federal or state prosecutors could handle a potential new tide of cases. Bankers, regulators, and consumer advocates went back and forth over whether to prioritize widespread access to credit (given the history of racial and gender-based exclusion from lending markets) or consumer protection against predatory lending.
In Vanatta’s telling, the first wave of regulatory responses left much of the New Deal order in place, even while accommodating credit cards to that order. By the mid-1970s, most states had capped credit card interest at around 18 percent, while Congress had imposed disclosure requirements and banned unsolicited mailings. These and other consumer protection measures “legitimized the bank card industry by regulating it, in effect binding credit cards within postwar liberalism’s regime of (relatively) low-cost, safe consumer credit” (P. 157).
But the story would not end there: “Bankers … had gotten into the card business to break free of the New Deal order’s onerous restrictions,” and “some would continue to seek and seize opportunities to innovate around the rules” (P. 157). In the New Deal order’s final demise, a key development was the Supreme Court’s 1978 decision in Marquette National Bank of Minneapolis v. First of Omaha Service Corporation, to which Vanatta devotes an illuminating chapter. In effect, Marquette decided which state’s usury laws applied to a credit card: the state where the card issuer was based, or the state where the cardholder lived? Under Nebraska law, the First National Bank of Omaha could charge 18 percent interest on credit cards. But many cardholders lived in Minnesota, which capped interest at 12 percent. The Court held unanimously that the bank was “located” for purposes of banking law in Nebraska, and therefore Nebraska’s more permissive limit reigned.
Citibank took quick advantage of Marquette, announcing in 1980 “that it would relocate its card operation from New York to South Dakota, a state with no applicable usury laws” (P. 265). A deregulatory cascade ensued in statehouses around the country. By the 1980s, almost every state had “either loosened or lifted [its] usury laws” (P. 280), and card issuers gravitated to states that had loosened their usury laws the most. In this new iteration of financial federalism, states still mattered for banking regulation, but in a different way: “By 2003 almost three-quarters of credit card loans in the United States originated from states, including South Dakota and Delaware, containing just 4 percent of the country’s population. Importantly, Citibank’s relocation did not make state interest rate regulation irrelevant; rather, it made the interest rate regulation of a few states national policy” (P. 290).
Another chronicler of this history might have presented a triumphant tale of inventive capitalists upending outdated regulatory structures; Vanatta instead worries about the consequences for democratic control over economic life. Some would argue that overly restrictive usury limits disincentivize banks from extending credit at all. Vanatta acknowledges that state-driven deregulation “opened credit markets and made credit available to underserved consumers,” but he argues that the tradeoffs between “unrestrained markets and consumer protection” are subject to political debate—a debate in which bankers now held the upper hand (P. 280). Indeed, much of Plastic Capitalism is devoted to recounting how bankers, policymakers, and consumers engaged in just that debate over the decades.
While “never perfectly democratic,” Vanatta concludes, the New Deal order “compelled bankers to negotiate the price and terms of credit with local stakeholders”; once banks escaped geography, “consumers lost their grip on the regulatory levers” (P. 297). Beyond its specific insights about credit cards, then, Plastic Capitalism offers much fodder for reflection about the modern disjuncture between the structure of political representation, which has remained rooted in geography, and the structure of economic and social life, in which even a $5 visit to a local coffee shop might involve contracting with entities that have no real geographic location at all, or whose geographic locations are something of a legal fiction.
Jun 27, 2024 Reuel Schiller
Here’s a narrative jewel from Margot Canaday’s stunning new book Queer Career: Sexuality and Work in Modern America: Canaday is interviewing a queer woman who drove a cab in Buffalo during the years following World War II. Apparently, taxi driving was a common profession for lesbians at the time. In fact, the cabbie believed that half the drivers in the company were queer. “The owner liked to hire lesbians—it was a transient job, but lesbians tended to stay. ‘Got any friends?’ he would ask. ‘Send them in.’” It was the kind of job, the driver told Canaday, that allowed her to live life the way she wanted. The informal nature of the work gave her the flexibility to socialize in gay spaces and to present herself authentically without fear of reprisal at work. During her years as a driver “she wore pants, a shirt, and a binder to work.” (P. 83.)
If you’re anything like me—a reader familiar with the standard narrative of the development of postwar liberalism—this story is disorienting. Driving a cab in postwar Buffalo was a congenial profession for lesbians? So congenial that half the employees were queer? So congenial that the boss actively tried to recruit lesbian drivers? So congenial that drivers felt comfortable being out at work? Wasn’t this the era of the Lavender Scare, when rampant homophobia and government persecution drove queer Americans out of the workforce and deep into the closet? This story is just one of many convincing, counterintuitive pieces of evidence that substantiate Canaday’s central claim: When you look at the world of “queer careers” through the lens of the Lavender Scare, you don’t see the employment experiences of most gay and lesbian workers. In fact, when you closely examine these experiences, as Canaday has done with an unprecedented degree of detail, you see a very different story. You see that for many gay and lesbian workers, the workplace became less hospitable as the twentieth century wore on.
By demonstrating this fact, Canaday is not painting some sort of rose-tinted image of a sexually egalitarian past. Far from it. In fact, the relationship between the social marginalization of queer people and the nature of their work lives is the fundamental story that Queer Career tells. The book traces the path that gay and lesbian workers took through the workplace in the second half of the twentieth century, showing the dramatic changes in the nature of their employment experiences. Canaday begins with an examination of a bifurcated world of “Gay Labor” in the years immediately after World War Two. There were “straight jobs”—professional, high-status, white-collar work—that were available to (mostly male) queer employees if they were willing to enter an implicit bargain with their employers. Employees would pretend to not be gay, and their employers would pretend to not notice that they were. Thus, contrary to the received historical wisdom, Canaday shows that gay and lesbian employees did not need to descend deep into the closet to get some of the financial and status benefits of America’s postwar economic boom. They simply had to participate in the demeaning pretense of “don’t ask/don’t tell.”
It’s obvious why many queer workers would embrace this bargain, but what was in it for the employers? Canaday’s answer to this question is compelling. America’s employers were not secret homophiles. Instead, they recognized that gay and lesbian employees “were valuable because they were vulnerable.” (P. 68.) They were workers without legal protections, living in a world of fear, where public employment was often unavailable and where they might be fired for no reason other than their choice of romantic companions. The law thus made the employment lives of queer workers especially precarious. In the years following the Second World War, many employers were happy to take advantage of that precarity. Gay and lesbian employees would work extra hours, take crap assignments, not complain if they were paid less, and not make a fuss if they were dismissed. Gay men did not have to be paid a family wage. Lesbians would not marry, become pregnant, and drop out of the workplace at a time that was inconvenient to their employers. In a postwar work world that was characterized by the expense and rigidity of the family wage and the collective bargaining agreement, queer employees were a “pressure-release valve” that allowed employers to reduce costs and increase efficiency. (P. 63.)
Of course, not all workers wished to take the benefits of this bargain. After all, it was premised on repression and exploitation: hiding your intimate relationships, comporting your behavior and appearance to straight norms, and accepting less pay for more work. For these workers, there existed a second world of work: “queer jobs.” Some, like that of the cab driver, were low-status, low-pay positions in industrial or peripheral labor markets. Others were in professions where, even in buttoned-up postwar America, “queerness” was part of the “package and brand”: hairdressers, cruise ship employees, and department store salesmen, for example. (P. 83.) Other jobs—in libraries, the garment industry, or the performing arts—were less queer-branded but had reputations as queer occupations. Finally, there were jobs within the gay demimonde: the employees of gay bars, drag performers, and sex workers. What this diverse set of jobs had in common was that they allowed workers to opt out of the bargain that the straight workplace required. These jobs might pay less, provide few opportunities for professional advancement, and have low status, but they nonetheless allowed gay workers to be more open with their sexuality. They were “pockets of relative safety,” that allowed workers to express their identity. (P. 100.)
Having described this world of queer labor, Canaday turns her attention to how it changed in the era of gay liberation, the period from the late 1960s to the early 1980s, bookended by the emancipatory impulses of Stonewall and the beginning of the AIDS crisis. She details the hard fought but largely unsuccessful effort to forge legal employment protections for gay and lesbian workers analogous to the prohibitions of race and sex discrimination embodied in Title VII of the Civil Rights Act of 1964. These legal battles occurred as the gay liberation movement pursued nonlegal strategies to empower gay and lesbian Americans. Ironically, the most prominent of these strategies—abandoning the closet—had the effect of making work more precarious for many queer workers. While the postwar bargain did not require a complete retreat into the closet, it did require a kind of discretion that was contrary to the liberationist ethos. Consequently, as more workers came out, employers abandoned the bargain. Indeed, even for workers who wished to keep to its terms, the rise of gay liberation increased the precariousness of their jobs. Employers worried about hiring gay and lesbian employees lest they accidentally employ someone who might adopt a liberationist posture, abandoning the straight norms of appearance and behavior that the bargain required. Thus, employers increasingly viewed any sign of possible queerness—an odd haircut, an unmarried thirty-five-year old, too many phone calls at work from same-sex friends—as a reason to fire a worker, or not hire them in the first place. Like the civil rights movements for people of color and straight women, gay liberation generated “a revolution in consciousness,” demonstrated by a public pride in one’s identity and demands for equal treatment. Unlike those other liberation struggles, however, gay liberation had no parallel “revolution in law.” (P. 149.) Lesbian and gay Americans had to assert their rights in the workplace without legal protections.
The AIDS epidemic increased the cost of this lack of legal protection dramatically. AIDS destroyed what remained of the postwar bargain. Panicked fears of contagion and concerns about the costs of employing queer workers—at risk of falling ill and dying—led to an increase in homophobia and discrimination in the workplace. While Canaday demonstrates, in some of Queer Career’s most moving passages, that the epidemic created deeply meaningful work for members of the community in healthcare and legal advocacy, she also shows how it drove many workers back into the closet. At height of the epidemic, a gay employee’s runny nose or a day off to care for a sick partner could result in dismissal. In the absence of meaningful anti-discrimination laws, the closet became the only option for many queer workers.
The lack of a “revolution in law” to protect the rights of gay and lesbian employees had another effect. If the government was not going to protect those rights, perhaps turning to private actors—the employers themselves—would be more effective. In Canaday’s final chapter, she demonstrates that this was, in fact, the choice that many queer workers made. By the end of the twentieth century, it was a select group of private employers, acting in response to pressures from their gay and lesbian employees, that provided a measure of dignity, recognition, and meaningful employment benefits to queer workers. Starting in the technology sector and in businesses in more diverse cities, employers began to support their queer employees. They slowly and haltingly recognized queer employee groups, celebrated Pride Week, and targeted gay consumers. Eventually, they put their money whether their mouths were by providing benefits to their employees’ domestic partners. Canaday shows that the recognition of these benefits was not easily achieved noblesse oblige by forward thinking employers. Nor was it the cooptation of the gay rights movement by cynical corporations. Instead, it was the result of grassroots organizing by workers who were willing to take the substantial risk of engaging in queer advocacy despite the lack of any legal protections. It also required connecting gay liberation to fin-de-siecle political economy. By supporting gay rights, the advocates argued, a business could retain its employees, find new markets, and reap the economic benefits of a diverse workforce. Canaday makes the irony palpable. For gays and lesbians in the United States, the most effective way to gain rights at work was to “disassociate” their movement from rights and law altogether. Supporting your queer employees “was about business efficiency and becoming an employer of choice.” It was about “being best equipped to tap into the resources of an increasingly diverse workforce.” (P. 255.)
The analytic pay-off of Canaday’s narrative is enormous. Her discovery of the postwar bargain and its decline should transform the narrative of postwar liberalism. Queer Career also speaks to debates about the nature of the gay rights movement: its alleged domination by whiteness and affluence and its alleged subservience to consumer capitalism. Both claims are ones that Canaday’s narrative convincingly refutes. For legal historians, her descriptions of the campaigns to expand civil rights legislation, combat governmental employment discrimination, and use existing civil rights statutes to curb discrimination against HIV-positive individuals are presented with a degree of detail missing from the existing literature. Even more significant is the way Canaday uses these stories to explain the mechanisms of queer employment precarity and its connection to postwar capitalism. The impact of these mechanisms, as she elegantly points out, should inform contemporary thinking about all workers. After all, Queer Career convincingly demonstrates that the characteristics of queer careers since 1945—profound imbalances of bargaining power, episodic gig work, invasive monitoring, employer demands for flexibility—sound an awful lot like the neoliberal workplace that most workers, gay and straight, inhabit today.
As powerful as Canaday’s arguments are, the triumph of this book is in the individual stories it tells. Queer Career is, first and foremost, a book is about the lives of working people. It is a book brimming with workers, some found in traditional documentary sources, and others made visible by the more than 150 interviews that Canaday conducted. At its center are joyous, heartbreaking, funny, cruel, and fundamentally human stories. We learn about Frank Kameny, the astronomer who used “the politics of annoyance” (P. 114) to challenge the federal government’s antigay hiring practices; about Ginny Berson, a founder of the Olivia Records Collective, a record company that catalogued its recordings with numbers prefaced by “LF,” which stood for “lesbian feminist”; and about Cliff Morrison, the clinical coordinator of Ward 5B, San Francisco General Hospital pathbreaking in-patient AIDS unit. We also meet hundreds of anonymous clerk-typists, computers scientists, bartenders, and project managers for whom work was a central component of their identity. Lost, but now found by Canaday, she has illuminated their lives to show how the history of queer work is a “history of vulnerability,” but also a history of how work of all kinds dignifies and gives meaning to life. (P. 280.)
May 31, 2024 William Smiley
Refugees, it seems, are scary. The movement of people fleeing violence and oppression attracts sympathy, but increasingly also fear. We hear talk of “carnage” and “chaos” at the US border as Central Americans flee political violence; the EU agrees to limit asylum-seekers; the UK plans to deport all asylum-seekers to Rwanda; in last year’s Turkish election, both President Erdoğan and his challenger promised to send home millions of Syrian refugees. Amidst these challenges to the global refugee regime, many turn to its founding documents, dating to the aftermath of World War II. Scholars of humanitarianism suggest the system’s roots lie a quarter-century earlier, in American and Western European responses to the collapse of the Romanov, Habsburg, and Ottoman Empires. In either case, the emergence of a legal regime for managing refugees is seen as driven by western, and particularly Christian, sympathies and solidarities. Vladimir Hamed-Troyansky’s new book challenges that view, arguing that as early as the 1850s, the Ottoman Empire—a state ruled by Muslims and often seen as outside the European world—“created its own nonwestern and nonsecular system of categorizing, sheltering, and resettling refugees.” (P. 3.)
Hamed-Troyansky makes this argument as part of a larger study of the immense migration (over a million people) of North Caucasian Muslims from the Russian Empire to the Ottoman Empire in the late nineteenth century. As the Russians consolidated their control over the Caucasus Mountains, they drove out many of the Muslims who lived there. In particular, the Circassians/Adyghe were extirpated so thoroughly that some have termed it a genocide. Most of these refugees fled to the Ottoman Empire, which responded by creating a legal and bureaucratic system to aid them and resettle them on its lands, from the Balkans to Jordan. Over the following decades, as the Ottoman Empire contracted, the North Caucasians were joined by many more Muslim refugees who fled (or were expelled from) the newly independent states of the Balkans. To tell this story, Hamed-Troyansky relies on a breathtaking diversity and depth of sources: twenty-three archives across ten countries, private papers and letters, and even interviews. He tells stories of imperial politics, local bureaucratic management, urban socioeconomic changes, and family microhistories.
For scholars of law, however, what will be most interesting about Hamed-Troyansky’s work is his reconstruction of the Ottoman refugee system, and what it can tell us about refugee law and politics even in our own day. The Ottoman state had long welcomed those who fled other domains, from Sephardic Jews in the fifteenth century to Hungarian nationalists in the nineteenth. The state’s landmark 1857 Immigration/Refugee (Muhacirin) Law, which inaugurated the Ottoman refugee system, likewise made no religious distinctions. But in practice, Hamed-Troyansky shows, it was sympathy for suffering Muslims that drove “Ottoman humanitarianism.” (P. 69.) Non-Muslim migrants received less help from the state, often required pre-authorization, and were not even referred to as refugees (muhacir). Jewish migration to Palestine attracted particular restrictions. “A refugee being Muslim,” Hamed-Troyansky concludes, “while not a codified requirement, was an expectation and raison d’être of the Ottoman refugee regime.” (P. 5.) In this sympathy for co-religionists, Ottoman humanitarianism looks familiar. Davide Rodogno has argued that European humanitarianism in the nineteenth century was more likely to favor Christian victims; India has adopted laws making it harder for Muslim refugees to receive citizenship than for others; and we have seen how some European governments reject Syrian refugees, but welcome Ukrainians.
Hamed-Troyansky also situates his story in its nineteenth-century context: this was an age of globalization and mass migration. Even as Muslim subjects of Russia came to the Ottoman Empire, so did Jewish ones, bound for Palestine; these stories were parallel “in the specific directionality and religious mandate of emigration as well as in their origins in persecution and mass flight.” (P. 11.) Even more famous, of course, are the stories of Europeans coming to America. But Hamed-Troyansky notes there were really two major migratory waves: in one, white Europeans settled the American, African, and Pacific frontiers; in the other, the peoples they displaced were themselves compelled to settle elsewhere. “The North Caucasians’ migration,” Hamed-Troyansky suggests, “was both of these stories.” (P. 7.) The domino effect of displacement, flight, settlement, and displacement of others is a theme running through the book, and invites questions about how many other migration stories were “both.”
The Ottoman refugee system, however, aimed at more than just humanitarian resettlement; it was also designed to further state interests. Some of these were fairly benign, such as the desire to establish prosperous farms that could be taxed. But others were less so: as the Ottoman Empire’s power waned, its leaders learned “the importance of counting people to stake out territorial claims.” (P. 80.) The best way to hold territory in the face of European demands was to have large numbers of Muslims living there. And the North Caucasians were conveniently Muslim, an identity “which the government regarded as a guarantee of their loyalty to the Ottoman state.” (P. 80.) The Ottoman resettlement system thus aimed to establish Circassian communities in places where the empire wanted a more favorable demographic balance, especially against Christian minorities. This, too, has echoes today. Turkey, for example, has recently settled displaced Sunni Syrians in formerly Kurdish areas along its border, helping refugees but also drawing allegations of “demographic engineering”: replacing a local population seen as a security threat with one perceived as more reliable.
At times the Ottoman state went further, aiming to reduce the “undesirable” population through population exchanges, deportations, and massacres. Some Muslim refugees played prominent roles in the Armenian Genocide (1915-1917), and the property of deported or murdered Christians was even handed over to refugee communities.
Hamed-Troyansky’s story thus reveals an uncomfortable truth: “ethnic cleansing and refugee relief are imagined as polar opposites: one is a war crime…and the other is a humanitarian good,” but “[i]n reality, they often overlap.” (P. 85.) For the Ottoman state, helping North Caucasian victims of Russian abuses seamlessly gave way to using those victims to further its own abuses against others. This dimension of Hamed-Troyansky’s work is perhaps the most valuable for scholars of law and humanitarianism—his attention to the nuanced and often Janus-faced nature of sympathy for “the other.” Giving aid is never impartial and can be inextricably connected with doing harm to another, less sympathetic, “other.”
May 2, 2024 Anders Walker
Edward J. Larson will probably be banned in Florida. His new book, American Inheritance: Liberty and Slavery in the Birth of a Nation, 1765-1795, plunges headfirst into a roiling debate over America’s racist origins, a debate that splashed across Internet platforms five years ago when The New York Times Magazine published The 1619 Project, a collection of hard-hitting essays on America’s anti-Black past. Headed by investigative journalist Nikole Hannah-Jones, the project claimed that the true founding of the United States was 1619, the year the first Africans arrived in British North America, and that the true story of the United States was – and remains – one of relentless racism against Black people. Even the Revolution, argued Hannah-Jones, was motivated by a racist desire to preserve slavery.
Hannah-Jones received mixed reviews for her polemic from historians, but she captivated progressive audiences with a national speaking tour, a Hulu documentary, and a “1619 Curriculum” for public schools. Conservatives countered with their own “1776 Project” (sponsored by the Trump White House) and a Senate bill aimed at “Saving American History” sponsored by Tom Cotton, Marsha Blackburn, and others. “The 1619 Project is based on false narrative,” declared Senator Blackburn, “and a stack of lies about our country.”
Into this “partisan minefield,” as he puts it, steps Larson, a Pulitzer Prize-winning historian and law professor who takes up many of the points made by The 1619 Project and elaborates on them by deftly weaving together an array of familiar secondary sources and not-so-familiar primary ones. Out of this comes a frank look at just how prevalent racial prejudice was in America during the late 18th Century, both North and South. For example, Larson provides us with a startling look at the racial views of Benjamin Franklin, a Framer who did not own enslaved people but nevertheless imagined that America would be better off without Blacks. “Why increase Sons of Africa,” complained Franklin, “by Planting them in America [?]”
Larson also takes up the controversial argument that racism fueled the Revolution and argues that yes, some Americans did indeed fight Britain to save slavery and preserve white supremacy, including white southerners who rankled at Lord Mansfield’s 1772 opinion in Somerset v. Stewart, and white Americans generally who balked at the 1775 announcement by Virginia governor John Murray, the Earl of Dunsmore, that all Black men who joined the British army during the Revolution were free. Dunsmore’s Proclamation, argues Larson, “probably [did] more to boost the patriot cause than the loyalist one,” for many white Americans were simply not prepared to see themselves subdued by Black soldiers. (P. 98.)
Larson shows persuasively that a general prejudice against Black people existed throughout the thirteen colonies, even in places where the majority opposed slavery. And slavery, Larson continues, provided colonists with a useful trope for opposing Britain. Again and again, white colonists compared their plight to that of slaves, and argued that the British were treating them like Black people, a rhetorical move that helped them build support not simply for reform, but for revolution. “[P]rosperous colonial lawyers, planters, and merchants from New England to the Carolinas,” writes Larson, asserted that they “would become Parliament’s Negroes” if they did not resist oppressive measures like the Stamp Act. (P. 34.) Even John Adams, who never owned slaves, stoked revolutionary sentiment by invoking race, arguing on the one hand that Parliament was enslaving whites and – on the other – that whites had to either resist or become Black. “We won’t be their negroes [sic],” he declared, using racism to fuel patriotism. (P. 44.)
Here, Larson’s account dovetails with Edmund S. Morgan’s story about colonial Virginia in his Pulitzer Prize winning book American Slavery, American Freedom: The Ordeal of Colonial Virginia. Published in 1975, Morgan’s book suggests there was nothing hypocritical about white slave owners like Jefferson, Madison, and Washington lobbying for liberty, since their very status as slave-owners was precisely what made them free.
Larson locates his work firmly “in the tradition” of Morgan, pitching it as sort of a sequel to American Slavery, American Freedom. “Where Morgan focused on seventeenth-century Virginia,” argues Larson, “this book center on the thirty core years of the Revolutionary Era, 1765-1795, and broadens the lens to include Blacks and whites, patriots and loyalists, politics and warfare, and all the states from New England to the lower South.” Morgan’s argument therefore dances in the background of Larson’s tale.
Both historians suggest that slavery and race were not problems in American history, so much as solutions. For Morgan, race solved the problem of class by dividing the poor and reducing the odds of armed uprisings like Bacon’s Rebellion. For Larson, race galvanized white colonists by giving them a unifying identity that transcended their ancient European grudges, and rallying cry that helped them to cast obedience to England as racial betrayal. Whether they were English, Irish, German or Dutch, in other words, white Americans all agreed that they were not Black, and only Blacks could – in their minds – be treated like slaves. The very fact that they identified themselves as white people was – in a way – revolutionary. (P. vii.)
Often cast as America’s “original sin,” racism in Larson’s book looks more like original glue, a bonding agent that united whites – North and South, rich and poor – and helped them stick together as they embark on a risky political voyage without a monarch or a church. Which leads to a question that Larson does not answer. If racism truly is part of America’s inheritance from the founding generation on, just like the Declaration of Independence or the Constitution, how can we ever hope to be rid of it? What other “glue” might there be to hold us together as we begin to imagine a truly interracial democracy?
Perhaps it is, as Jill Lepore argues, “these truths,” the very abstract ideals that Thomas Jefferson invoked in the Declaration of Independence. Though he and his founding brothers may have been racists, as Larson demonstrates, their ideals were not. And the future need not be either.
Apr 1, 2024 Jedidiah Kroncke
There is an oddity to the place of constitutional law in the modern American legal academy. Law faculties invariably have multiple scholars devoted to its study, it is considered a core curricular course, and yet most law graduates will never directly practice it in any form. There have been debates about its pedagogical merits revolving around assumptions that the Constitution is not just the foundational document structuring our legal system but has also always served as its deepest reservoir for exploring our most critical collective challenges. As such, constitutional scholarship sits atop an implicit hierarchy of legal inquiry shaping the litigation that putatively confronts, and resolves, the most pressing issues of our day. In turn, the Supreme Court is worthy of center stage in the social production of legal intellectual prestige.
In his mid-career opus, The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them, Aziz Rana attempts to deconstruct this and other such elevations of modern constitutionalism in American society. Most fundamentally, he seeks to denaturalize this state of “constitutional veneration” in which the legal academy is but one facet of the broader American embrace of “creedal constitutionalism.” The near deification of constitutional law, the Supreme Court, and the Constitution as core elements of American identity, Rana argues, is a relative novelty in American history. Every element of our current reverential preoccupation with the Constitution, whether in the legal academy or in our larger social politics, simply did not exist for most of the nation’s collective history.
For Rana, this reverence is in fact the product of a range of contingent mid-20th developments deeply intertwined with the rise of America as a global empire. The sacralization of the Constitution was built on a rewriting of American history which read these contingencies back into the American past and sidelined its settler colonial, ethno-nationalist, and imperial dimensions. In doing so, the naturalization of this “creedal constitutionalism” as central to modern American identity submerged and erased both a far more complex and contingent place for the Constitution in American political discourse as well as many competing constitutional visions once fervently fought over in the last two centuries.
The cost of this erasure is acute—manifest in an inability to confront the deeply anti-democratic elements of the Constitution whose operation, however ameliorated at particular historical junctures, has contributed to many of the social and political pathologies roiling American society today.
The ambition of Rana’s project is simultaneously diagnostic, expository, and reconstructive as Bind reaches nearly seven hundred pages before giving way to its footnotes. It builds directly on Rana’s first monograph, The Two Faces of American Freedom, which confronted related issues from the 18th through the 19th century. In turn, Bind is divided into four parts and sixteen chapters which bring us from the 1890s to the present. Bind’s more explicitly transnational orientation has each part framed by the development of American empire: the late 19th-century rise of American global power, the dynamics of World Wars I and II, and what might be called the early and late stages of the Cold War.
As a grand synthetic work of intellectual history, what Bind achieves in each of these eras is to demonstrate both the empirical marginality of our contemporary “creedal constitutionalism” and its progressive construction through a combination of social campaigns, state repression and political contests which reconfigured American identity as interwoven with global primacy. All while radical constitutional visions were coopted as the very strategic terrain on which those seeking to democratize American society was reshaped.
To start his longue durée, Rana identifies the relative irony that his “creedal constitutionalism”–identified as combining a commitment to racial equality with textual devotion to the Constitution–was an oddity in a 19th century American society. It was first practiced by radical abolitionists embracing a redemptive understanding of the document’s core commitments. The cultural universalism pursued by such radicals stood out in a country still openly possessed by a masculine ethno-nationalist concept of settler citizenship. It was also an era when the Supreme Court’s status was barely enough to attract investment for its material infrastructure, immigrant naturalization made little reference to the Constitution, and a wide range of social movements coalesced around deep critiques of the Constitution as irredeemably flawed. Even the Constitution’s first centennial was anemic at best, and constitutional law was absent from any formal legal curriculums.
Bind’s sequel-like relationship to Two Faces manifests as Rana chronicles how this 19th century American identity–the “settler compact”–collapsed after the Civil War under the concurrent pressures of industrialization, urbanization, and mass immigration. What came to be normalized as “American” cultural traits were in fact but a minor subset of the diverse reactions to this collapse. If anything, American society was still localized enough that suspicion of the national, and with it the Constitution, undergirded sentiments that the “Constitution was an aristocratic victory of propertied elites against the mass of ordinary settlers.” (P. 93.)
The shift away from this culture of Constitutional suspicion required fusing “creedalism, constitutional devotion, and US [global] primacy into a cohesive framework.” (24) Rana’s engagement with the US occupation of the Philippines outlines how the original ethno-nationalist exclusion of Filipinos from democratic inclusion was reformulated into a formally de-racialized universalism soon to be impactful at home. The inter-relationship of American empire with domestic constitutional discourse would later cast Mexico’s 1917 constitution as an antagonistic comparator to stigmatize socialist admirers, and Nazi Germany and the Soviet Union foregrounded as existential threats to creedal constitutionalism. Herein, the Constitution was reborn as the original post-colonial statement of exceptional American self-determination, and a gift that could then be transmitted to a world.
Rana shows how this new vision was initially far from dominant, but it was these transnational elements that eventually provided the fulcrum on which its ascendance turned. For they created a sense of perpetual emergency where promotion of the Constitution’s civil liberties was necessary to serve as a bulwark against overseas fascism, even if, paradoxically, those very liberties had to be suppressed at home in service of this global mission. Nowhere was this clearer than in the concurrence of novel celebrations of the Bill of the Rights and endorsements of Japanese internment.
This “divided liberal mind” could thus have a flexible sense of cultural pluralism as long as newly included groups accepted militarism abroad, national security at home, and abandoned radical critiques of the Constitution. Varied coalitions of economic interests also opportunistically injected market capitalism into this mix, with “pro-Constitution advocacy closely bound itself to a remarkably authoritarian statecraft, one that tarred anti-war, anti-Constitution, and anti-capitalist speech as interrelated threats to Americanism.” (P. 251.)
The ultimate success of this new constellation of “American” virtues was built on the growth of the post-World War II middle class and the accomplishments of an array of social movements—most evident in women’s enfranchisement and the Civil Rights Act—through accepting the terms of this accommodation. Rana does not discount these successes but shows that this accommodation accelerated the disciplinary power of the national security state and its private allies to rework what was considered “American” forms of social resistance. Thus, the energies of these movements were redirected to entrench constitutional veneration when their popular force could not be overtly resisted—presenting them as natural outgrowths of the redemptive function of even the Constitution’s own counter-majoritarian elements.
Bind traces this dynamic of accommodation several times over as Rana recovers the undermining of “radical movements on behalf of workers, women, Black Americans, and Indigenous communities.” (16) In each instance, the prospect of immediate concessions is held out to allow the tamed inclusion of any radical charge into the redemptive arc of American constitutional history. This further then allowed favored leaders to portray marginalized groups as truer to the Constitution’s project than the dominant social interests they oppose.
The seeds of our contemporary crises then lie in these now deified political constraints–the books titular “binds”–which removed “from public dispute critical questions that had long been central in American public life—questions about the basic organization and principles of the legal-political system, the economy, and the emerging national security state.” (P. 390.)
In its actual unfolding, the book is anything but a march of abstractions. Rana’s general objective of denaturalizing contemporary constitutional veneration is matched by a sustained project of historical recovery. Each chapter relates a rich tapestry of once vibrant, if now suppressed, voices who struggled to democratize American society only to later be reductively characterized as unprincipled and dangerous populists when remembered at all.
There are several figures who recur in his chapters, each either demonstrative of larger transitions or as avatars of the solidaristic social vision close to Rana’s own sensibilities. Woodrow Wilson and W.E.B DuBois stand out in the former category for their shifting views of both the Constitution and American imperialism. Hubert Harrison and Crystal Eastman stand out in the latter category—their legacies obscured exactly because they refused to surrender their expansive visions of democratic social change, rejected constitutional veneration, and remained steadfast opponents of imperial expansion.
Bind does not conclude with clear prescriptions. Rana’s overarching motivation is to highlight the contingency of our modern sensibilities exactly because he sees the “Cold War consensus” of the mid-20th century unraveling in much the same way as the “settler compact” unraveled at the end of the 19th century. His history aims to refocus us on what previous reformers were asked to set aside: basic structural distributions of democratic power that are not dependent on compensatory developments that only episodically paper over the defects in Constitution. Genuine democratization will require being honest about our history, and especially the cost that American global primacy has extracted at home and abroad. It also requires rejecting resurgent elements of our settler colonial past.
If it seemed odd that this review began with a discussion of the American legal academy given the scope of Bind’s narrative, its salience becomes clear in the more personal notes of Rana’s conclusion. He is, by vocation, a constitutional law professor. While many have recently expressed despair that the current Supreme Court has sabotaged American constitutionalism, Rana sees the presumptions of this “loss” as presuming the very contingent imagination that he and many others had already found naturalized when they first entered law school.
Thus, Bind’s conclusion makes a plea to the legal elites most empowered by constitutional veneration that a necessary step is to let go of its false promise. The American legal academy, the American Bar Association, and the Supreme Court were often at the vanguard of the suppression and accommodation he highlights, as they helped stigmatize more radical visions even within their own ranks. Such complicity was rewarded with the Warren Court notion of transformative constitutionalism which placed lawyers at the forefront of social change.
Rana’s account of the New Deal is integral here, noting how even once strident constitutional critics such as Charles Beard succumbed to the idea that constitutional veneration would constructively provide lawyers roles as “definitive guardians of constitutional meaning and possibility.” And constitutional lawyers and the Supreme Court, bound together through myriad social and professional practices, would be the most empowered of all as textual interpreters if they rejected any dreams of institutional redesign. Whatever accomplishments may mark some of the recent past, it is not through Supreme Court commissions or other technocratic legal exercises that Rana’s constitutional reimagination will happen. Much like American primacy abroad, it will only be with a collective acceptance that this empowerment has come at too great a cost.
I did not use the term opus causally. The Constitutional Bind requires much of a reader set to engage it in one sitting. But its very sense of overflowing detail and overlapping narratives relays the richness of American constitutional visions that have been lost. Even if one wants to look to history to recovery something more authentically American, Rana is committed to showing us that this is no inspirational straitjacket. If there is anything that has been consistent in visions of American democracy, it is their diversity and conflict. Once recognized this renders possible futures free of our self-imposed, and self-sabotaging constraints.
Mar 1, 2024 Taisu Zhang
There is a traditional narrative about law and legality that scholars have told, in various forms, since the late nineteenth century. In this telling, generalized, formal law emerged as an institutional response to sociopolitical flattening and socioeconomic distancing. As societies transitioned from “status to contract,” abandoning traditional hierarchies in favor of ideals of individual equality, formal equality before the law became more attractive.
Similarly, as economic activities expanded beyond the horizon of closely knit social networks, the institutional need for stranger-oriented transactions and collaboration created immense demand for formal legal institutions that supplied uniformity and reliability across highly diverse socioeconomic terrain. Correspondingly, new ideas of “law,” “legality,” and “the rule of law” emerged.
What has too often been missing from these narratives is a compelling account of the transition itself: how socioeconomic need translated into concrete political, intellectual, institutional change. The idea that demand produces supply over the long term may well be correct, but the specific mechanisms of that supply nonetheless deserve careful study, not least because it tends to affect the final institutional product in both form and substance.
In Redefining the Rule of Law: An Eighteenth-Century Case Study, Christian R. Burset provides a precisely argued, expertly documented, and intellectually sophisticated account of one such mechanism. Through an examination of legal-political dialogue in the eighteenth-century British empire, Burset demonstrates that the specific experience of colonialism generated much of the intellectual and political energy behind modern “rule of law” ideals that have gained both dialogical and institutional dominance in the Anglosphere.
While there was indeed a “rule of law” tradition that had been developed “organically” in Britain, it was a qualitatively “thicker” tradition that often indulged in nationalism and therefore emphasized British uniqueness. It was the British empire’s legal extension into its colonies, North American, Indian, and other, that decisively swung legal-political discourse towards a “thinner,” more abstract “rule of law” ideal that later become the paradigm for modern legality.
Burset’s account offers a clear “before and after” contrast. In the “before” paradigm, which his article traces to Whiggish discourses of the seventeenth century, “rule of law” was not the rule of any law that met generalized criteria, but rather a very specific ideal that was closely tailored to British institutional realities. In this formulation, the ideal had “three core features” (P. 664): first, it was “institutional specific,” in the sense that it identified not with abstract principles but with concrete British legal institutions such as juries, habeas corpus, and freehold land tenure. Second, it was often unabashedly nationalist, juxtaposing British law with negative comparisons to foreign systems. Sometimes, the “other” was the French, whose politicized judges were contrasted with supposedly neutral English juries. In other contexts, the “other” could be Spanish regimes or Asian ones. Sometimes, the comparison was not geographical but temporal, between Whig legality and England’s Stuart past.
Third and perhaps most importantly, the traditional ideal was “thick,” in the sense that it “incorporated substantive goals for society.” (P. 665.) The “rule of law” was not merely the dominance of formalized laws over amorphous politics, but more importantly the rule of good laws—laws that pursued the common good of all British subjects. Specifically, it meant the application of law to protect a measure of freedom, secure property, and equality for qualified subjects, and furthermore to promote Protestantism and the growth of industry. Law therefore became fundamentally intertwined with core religious, political and economic components of British identity.
Compared to this highly historically contextualized “before” paradigm, the “after” paradigm that Burset lays out hews much closer to modern ideals of abstraction and generalization. By the eighteenth century, a new, “thinner” ideal of the “rule of law” had become influential among legal commentators and political actors. Centering around notions of legal certainty and generalizability, this new ideal cast doubt on a number of traditional British legal institutions, including bills of attainder and even the use of judicial precedent itself.
Although not all traditional institutions appeared deficient under this new theory of law, enough did that, by the late eighteenth century, the dominant view among jurists was that British law was “defectively uncertain” (P. 672) and “potentially inconsistent with the rule of law.” (P. 678.) To be sure, ideals of certainty and generalizability played some role even in the traditional, thicker notion of “rule of law,” but there, they were negotiable aspirations, and could be occasionally diluted without perceived damage to the foundations of legality. (P. 677.) The new ideal essentially elevated them to the status of fundamental, inviolable principles, without which the entire enterprise of law and legality would collapse.
This meant, of course, that the new ideal had to drop some of the thicker components of the old ideal: given the perceived failings of traditional British legal institutions, overt nationalism gave way to more politically neutral perceptions of legal functionality. Theoretically, the new ideal would be able to accommodate concepts of the common good, but on that dimension, too, the British system was now recast as a work-in-progress. As a result, “rule of law” now became a thinner and more abstract concept, something anchored in intellectual principles rather than institutional reality.
But what mechanisms bridged this transition from before to after? Here, Burset’s article gestures towards a number of classic explanations, including the demand-supply narrative discussed at the outset of this review, but ultimately, Burset identifies the British colonial experience with legal pluralism as the indispensable force behind the shift. Starting in the eighteenth century, the British Empire began to accommodate more forms of legal pluralism in its colonies, choosing to recognize local laws and customs as legitimately enforceable rather than to force compliance with British law. Much of this was, of course, by sheer functional necessity: as became increasingly obvious with the territorial expansion of the empire, exporting British law to all of its corners required enormous amounts of fiscal and administrative investment, and all too often produced worse outcomes, in terms of socioeconomic order and compliance, than simply preserving local institutions. Correspondingly, British politics came to tolerate, even embrace a more decentralized mode of legal and political governance, thereby producing enormous amounts of institutional pluralism in the empire’s peripheries.
These on-the-ground realities demanded a certain amount of intellectual accommodation by jurists. If only traditional British law met “rule of law” standards, then the kind of legal pluralism that was now proliferating across the colonies clearly fell short of those standards, and in fact offered no hope of ever reaching them. This was a problematic idea for British elites to digest, committed as they were to the self-aggrandizing belief that they were exporting civilization and progress to the colonies.
Under these kinds of intellectual pressures, the new, “thinner” and more abstract ideal of “rule of law” as certainty and generalizability gained enormous appeal. It allowed legal and political commentators to characterize colonial legal pluralism simply as variations of “the rule of law,” thereby preserving the idea that empire and conquest were forces for progress and civilizational elevation. At the same time, this broader ideal synergized with a new, more cosmopolitan worldview among the British elite, in which they imagined themselves the masters of a universal global enterprise, rather than merely the guardians of a parochial local tradition.
Burset’s article echoes recent trends in legal history, international law, and comparative law, in which developments at the peripheries of empire have powerful feedback effects on its center. What distinguishes his account, however, is its extension of that feedback effect to the very core of British legal identity—not merely to specific institutions or politics, but to the very highest ideals of legal discourse. If “the rule of law” is the centerpiece of legal modernity, then at least one highly influential strand of its initial formation was built upon the experience of imperial expansion and governance.
This is a very powerful idea, one that Burset illustrates with due precision and empirical care. His core actors are, for the most part, familiar legal figures like Blackstone or Mansfield or major political figures like Mostyn or Hastings, but given the article’s focus on elite discourse, this is a fully defensible move. Within that rarefied sociopolitical world, the article excavates ideas and dialogues in a fairly muscular fashion, drawing out intellectual patterns, some extending across multiple decades, in a fairly direct and unapologetic fashion. Nonetheless, when the occasion calls for finesse and subtlety, such as in the temporal contrast between traditional and modern ideals of “rule of law,” the article generally supplies them with considerable skill.
One cannot help but wonder about the potential generalizability of Burset’s thesis: the experience of empire was a common one among eighteenth- and nineteenth-century Eurasian powers, and the move towards a more abstract ideal of law and legality was certainly not a uniquely British experience. One wonders, therefore, if the encounter with and toleration of institutional pluralism—something of a basic necessity for any aspirational imperial power, given the resource constraints of eighteenth-century states—had a similar effect elsewhere, pushing elite legal discourse across Eurasia, or at least Europe, in a more cosmopolitan and intellectually abstract direction. At least one other recent work on legal history, Natasha Wheatley’s The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty also points in this direction, offering an account of Hapsburg legal-political discourse as responding to experiences of institutional diversity created by empire.
Burset’s article also offers some fairly compelling insights at the level of political theory. It shows, for example, how ideological change in the realm of law occurred not in direct response to slow, gradual shifts in domestic socioeconomic circumstances, but rather to short bursts of major realignment in geopolitical position. The article does not exactly rule out the former, but it does illustrate the latter’s arguably superior political salience among British elites.
Moreover, it demonstrates the importance of internal coherence to political worldviews: to a large extent, the shift to modern “rule of law” ideals came as a result of elite ideas working themselves into a coherent, self-reinforcing whole, in which different components—about law, about imperial governance, about “Britishness”—tended to mutually support each other. Both of these insights resonate powerfully with recent research on the formulation and sustenance of political ideologies, in which ideological change happens in lurches rather than gradually, with long periods of self-entrenching cohesion in-between.
In an era where much historical writing no longer speaks to broader issues of causality and theoretical mechanism, Burset’s article offers a refreshing divergence from the norm, tackling those issues head-on, but without sacrificing empirical richness or analytical care. It is a significant achievement, one that deserves widespread attention and engagement among the legal historian community and beyond.
