Risa Goluboff's essay review of Ken Mack's Representing the Race, "Lawyers, Law, and the New Civil Rights History," has just appeared in the June 2013 Harvard Law Review. While much of the essay is about Ken's book, Risa links Representing the Race to a series of works over the past decade or so that deal with civil rights history and constitutional law broadly conceived.
In the new civil rights history, lawyers — many and diverse lawyers — serve as intermediaries. The new field thus responds to a call Professor Hendrik Hartog made over twenty-five years ago to wed social and legal history by exploring the lived constitutional experiences of laypeople. Recent civil rights historians have heeded that call, and they pick up specifically on a minor strain in Hartog’s article that linked lay legal experience with formal legal processes. Constitutional history, Hartog wrote, “requires a perspective wide enough to incorporate the relations between official producers of constitutional law, and those who at particular times and in particular circumstances resisted or reinterpreted constitutional law.” Hartog suggested that “[l]awyers’ categories, formal legalistic language, [are] important subjects of study, but as translations and as mediations of aspirations and claims, not as the ends of inquiry.”
This is where the new field has gone. It practices a history that emphasizes connections between laypeople and formal law — one that understands lawyers as mediators, facilitators, and gatekeepers. Lawyers have their own interests and constraints, but they also interact with myriad other actors in the process of creating legal change. That is not to say that the new literature treats lawyers as ciphers, merely offering courts whatever claims clients press. They choose, reject, shape, and transform those clients and their claims just as those clients and their claims transform and interrupt lawyers’ ideas about law and legal doctrine. ...
Read the rest of this important and useful essay here. I'd add that the expanded scope of constitutional law -- that looks to the ideas of people outside of the courts and even outside of the legal system -- is rippling through all of American thistory, especially the years leading into Civil War, the War itself, and of course the era of Reconstruction.
The image is of the monument to African Americans at the South Carolina capitol grounds in Columbia.