James Jackson Lowell

This evening I'm trying to make a little progress on my cemetery constitutionalism paper -- and am most interested in when it was that constitutional law became something we think of in terms of cases and "The Constitution" rather than a constellation of ideas about our union, of which "The Constitution" is the centerpiece.  I'm guessing that's an early twentieth century phenomenon -- maybe in some ways late nineteenth, perhaps as part of our rethinking of law in the wake of Civil War.  At least that's how I'm thinking about it now -- this may be subject to revision later.  There's a great article to be written on this, if it hasn't been written already.

To get a better grip on this, I turned to my bookshelf to look at Allan Johnson's volumes on constitutional history.  The first volume was called Readings in American Constitutional History, 1776-1876.  Yes -- that's 1776, not 1787.  Just to give you a sense of how old they are, I'll note that the second volume is labeled "Readings in Recent American Constitutional History, 1876-1926."  I picked the latter up at a Widener library book sale back in, it appears, March 1994.  And I noticed that there's a bookplate saying that this book was purchased with money from the James Jackson Lowell fund -- and that Lowell was an 1858 graduate of the college, that he left the law school to join the 20th Massachusetts volunteers, and that he died in the battle of Glendale (in Virginia) in July 1862.  The fund was given by his sister, Harriet Lowell Putnam, in memory of him in 1917.  This is all very poignant because of how his sister nurtured his memory all those years -- and also because, as I now know, the 1910s was a decade when lots of people were making an effort to preserve the memory of their loved ones who died in the war.  They were often among the last people who had a living connection to those victims of the war.

But -- and this is what's particularly cool about all of this -- Allan Johnson was a Yale history professor who published an article in the pages of the Yale Law Journal that supported a pro-southern interpretation of the Fugitive Slave Act of 1850.   So we have a book purchased with a fund given in memory of a United States army hero by a person who had a pro-southern interpretation of the Constitution.  Ah, another example of the unexpected outdoing itself in its power to surprise, as Ellison said in "Going to the Territory."  I have an essay about Dr. Johnson's article, which I need to dust off and do something with one of these days -- I think it's a companion to a lot of other literature from the early 20th century that tried to reconcile North and South by pointing out the ways that errors were made on all sides.

Oh, yeah, one more thing, it appears that Lt. Lowell was buried in Mount Auburn Cemetery!

Comments

[Bill Turnier]

Perhaps the early 20th, late 19th, century emphasis on cases may have something to do with the coming of Langdell's case method. Christopher Columbus ( you either hat or love that name) Langdell first used it in 1870 and it slowly spread to other law schools from then.

[Alfred Brophy]

Really interesting suggestion, Bill. I think that the emphasis on cases in law school probably has a lot to do with how we think about "Constitutional law." When "constitutional law" is taught by historians and political scientists, I would imagine they were a lot more willing to look beyond cases than we are in law school. And maybe that accounts for much of the change. I guess the switch is also partly due to the increasing focus on the Supreme Court as an arbiter of issues? The question, then, is why that change....

[Bill Turnier]

Al, again the change in legal education with it's emphasis on cases in general, as opposed to Blackstone (and other authorities) and black letter law principles may to some degree account for the emerging primacy of the judiciary in late 19th century America. Daniel Boorstin has a nice essay on how Blackstone aided in creating a modified uniformity in the law with judges and lawyers on the frontier having little else to go by. Blackstone's Commentaries had the advantage of fitting in a saddle pack thus making them pretty accessible to frontier lawyer and judge alike. I presume that one also needed a more stable and prosperous environment before we could use libraries to consult cases in all but the cities of the East Coast.