The Faculty Lounge

“Is there anything more to learn from The Federalist Papers?”

The following is a guest post by Christian Fritz, Professor Emeritus at the University of New Mexico School of Law:

As every student of American constitutional history and political theory knows, the literature on The Federalist Papers is enormous. Given the dozens of editions with scholarly introductions, countless collections of essays on the meaning of Publius, and the ubiquitous citations to Federalist essays by the courts and researchers, it would seem likely that the answer to the question posed in the title would be no.

Despite their exhaustive treatment, something crucial has been overlooked in the famous essays: an articulation of a constitutional tool that would emerge in practice in the hands of state legislatures after the ratification of the Constitution and one that has played an important part in thinking about the proper balance of authority between the federal government and those of the states.

In Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023), I trace the genesis of that constitutional tool to several essays by both James Madison and Alexander Hamilton in which they described—without using the term interposition—a mechanism that state legislatures might employ in their role as monitors of the federalism created by the Constitution to ensure that the new national government would not overreach its constitutional authority and intrude upon the powers retained by the states. What began as a debate-like response to opponents of ratification, eventually took on a life of its own, producing a tradition of monitoring federalism that had a vibrant life in American constitutional history until and during the Civil War and even for a time thereafter, before suffering a demise.

The Constitution’s shared sovereignty between nation and states created a dynamic federalism that stimulated continuous debates over the balance of power, including debates over slavery and taxation. Thus, state interposition was fundamental in shaping the American political conversation about our constitutional rights and illustrated a strength and not a weakness of the framers’ constitutional design, inviting each generation to consider what the appropriate constitutional balance should be. 

Monitoring American Federalism demonstrates how states played a crucial role from the beginning of the republic in assessing the equilibrium of federalism within the American constitutional order. Unlike judicial review, interposition did not have immediate constitutional effect, but was designed to work through political pressure in attempting to maintain an equilibrium between the national and state governments by enabling state legislatures to express and coordinate their discontent over federal laws and measures. State legislatures would sound the alarm about a perceived constitutional overreach, pass interposition resolutions, and share the resolutions with other states to exert maximum political pressure on whatever branch of the federal government was responsible for the overreach.

In its use before the Civil War, interposition by states involved the conviction that elected officials, especially state legislators, but also individual citizens, juries, and the press, could properly scrutinize any expansive assertions by the federal government, not simply the Supreme Court. Indeed, state interposition would be used to oppose many perceived threats, including the Alien and Sedition Acts, the War of 1812, federal tariffs, internal improvements, and pro-slavery laws.

Interposition emerged as a response to critics worried that the Constitution’s grant of national powers would obliterate state authority. This early interposition formed an institutional and intentional way to acknowledge divided sovereignty under the Constitution and to preserve the equilibrium of federalism. Properly understood at the time, interposition was not a claim that state sovereignty could or should displace national authority, but a claim that American federalism needed to preserve some balance between state and national authority. Moreover, interposition was not a claim for the constitutional independence of state legislatures.

Interposition as a constitutional tool became distorted with the rise of South Carolinian John C. Calhoun’s claims during the Nullification crisis of the 1830s. Historians today describe interposition as inherent in the states’ rights political tradition of defending slavery, which inexorably led to Southern secession and Civil War. This narrative ignores the practice of interposition before its appropriation by nullifiers and those invested in slavery who claimed the right of individual states to defy national laws and decisions of the Supreme Court. Nonetheless, there was a great divide between those who advocated for the rights of state legislatures to question the federal government on any constitutional issue through interposition—and those who supported nullification. The gulf between the two invocations of state interposition was underscored in the 1830s, when many of those who embraced interposition rejected nullification.

Nixon's Legal Battle with the NY Times and Washington Post

On Saturday afternoon I saw the outstanding new Steven Spielberg movie, "The Post." I highly recommend it, even though there is one important historical omission in the film.

The movie tells the story of the Washington Post's famous 1971 decision to publish the Pentagon Papers, a top secret study of the Vietnam War that exposed the government's long history of lying to the country about the stalemated nature of the conflict. Daniel Ellsberg, a former Marine officer and Rand Corporation analyst, leaked the classified study to the New York Times and later to the Post. The Times was the first to publish, setting in motion a dramatic showdown with President Richard Nixon.

The acting is terrific, particularly Meryl Streep as the Post's publisher Katherine Graham, the hero of the story. Against the advice of her lawyers, but with the enthusiastic support of her editors and reporters, Graham decided to publish excerpts of the classified study. The decision was legally and financially risky because, just two days earlier, the Nixon Administration had succeeded in securing a court order to enjoin the Times from continuing to publish its bombshell stories on the Pentagon Papers. Moreover, less than 24 hours after the Washington Post began to run its own Pentagon Papers stories, the Nixon Administration secured a temporary restraining order against the Post. 

The Thirteenth Amendment and Freedom of Contract

 

When the Thirteenth Amendment abolished slavery and involuntary servitude, it altered the fundamental principles underlying our country’s labor and employment law.  Prior to the Thirteenth Amendment, the paradigm of labor and employment law was unfree labor.  The Thirteenth Amendment replaced that paradigm of unfree labor with one of freedom of contract. 

The most obvious example of unfree labor in the antebellum United States was the institution slavery.  Slaves were under the complete control of the “masters” who exploited their labor.  Under the laws of slave states, slaves were treated as property and denied the most basic of human rights.  But slaves were not the only unfree workers in antebellum America.  Thousands of immigrants came to the United States as indentured servants, bound to their employers for terms of years and subject to criminal sanctions if they left those employers.  Other workers served as apprentices who were also bound to their masters for a term of years.  Early industrial workers were often required to sign year-long contracts, bound to their employers regardless of the wages and conditions of work.  These workers were unable to leave exploitative employers and thus lacked any means to improve their wages and conditions of work.

During the antebellum era, many anti-slavery activists argued that slavery violated fundamental human rights.  Above all, slaves were denied the right to free contracts.  They could not enter into contracts with employers, were prohibited from engaging in most commercial transactions (especially real estate transactions), and were often denied the right to enter into marriage contracts.  Anti-slavery activists generally agreed that freed slaves should enjoy the right to contract.  For many, the right to contract was a central feature of their antislavery ideology.  The Thirteenth Amendment also extended the right to free contracts to northern workers by abolishing “involuntary servitude” as well as slavery. 

But what did the right to contract mean?  Did it mean a formal right to contract without government assistance?  Or did the right to contract include the right to government intervention to equalize bargaining power and protect against exploitation?

Some members of the Reconstruction Congress believed that the formal right to contract was sufficient absent government support.   Many Freedman’s Bureau officials agreed, allowing former slaves to enter into contracts with their former masters without sufficient oversight of exploitative contracts.

However, a majority of the Reconstruction Congress chose the latter approach.  Immediately after the Thirteenth Amendment became law, members of the Reconstruction Congress began to enact legislation enforcing the right to free contracts.  Their primary focus was employment contracts.  The 1866 Civil Rights Act, which prohibited race discrimination in contracts, was targeted at southern Black laws that attempted to impose involuntary servitude on newly freed slaves.  The 1867 Anti-Peonage Act prohibited workers from either voluntarily or involuntarily entering into contracts which amounted to indentured servitude.  The 1868 Eight Hours Act limited the hours of work of federal employees.  All of the laws enhanced the power of workers to enter into fair and free contracts.

The debate over the meaning of freedom of contract continued into the Twentieth Century.  More on that later.

 

Martin Luther King, Jr. and A Positive Right to Free Labor

This week, I had the honor and pleasure of speaking at the Vermont Law School Celebration of Martin Luther King, Jr.  Preparing my talk gave me the opportunity to think about the civil right’s movement’s advocacy for a positive right to free labor.  As I have discussed in earlier posts, a positive right to free labor is the right to work free of undue coercion, for a fair wage, without discrimination based on immutable characteristics.  In my book, The Forgotten Emancipator: James Mitchell Ashley and the Ideological Origins of Reconstruction, I argue that the Reconstruction Congress established a positive right to free labor with the Thirteenth Amendment and statutes enforcing that amendment.  Today, I want to talk about the labor and civil rights movement’s efforts to promote a positive right to free labor in the Twentieth Century.

After Reconstruction, the southern United States descended into the Jim Crow system marked by racialized violence, the deprivation of civil and political rights, and the exploitation of black labor.  The leading rights movement in the early Twentieth Century was the labor movement.  Labor leaders asserted the right to organize, bargain collectively, and strike.  They also fought for protective legislation such as minimum wage and maximum hours laws.  Millions of workers engaged in strikes and demonstrations to advocate for these rights.  During the 1930s, the New Deal Congress responded, enacting the National Labor Relations Act, which recognized a federal right to organize; the Fair Labor Standards Act, which established a minimum wage and maximum hours; and the Social Security Act, which established an economic safety net that included unemployment insurance for workers. 

These New Deal measures enforced the two prongs for the positive right to free labor.  Belonging to a union empowered workers to bargain for fair wages and improved conditions of work.  To paraphrase Justice Robert Jackson in the case of Pollock v. Williams, belonging to a union gave workers “the power below to redress . . . a harsh overlordship or unwholesome conditions of work,” and combat coercive labor practices.  Jackson’s Pollock opinion interpreted the Reconstruction Era Anti-Peonage Act and articulated a judicially enforceable standard to for determining when employment practices create an unduly coercive involuntary servitude. The FLSA raised the wages of workers who did not belong to unions, also enforcing the second prong of a positive right to free labor. 

The third prong of a positive right to free labor, the right to work free of discrimination, was missing from New Deal measures.  Moreover, domestic and agricultural workers, many of whom were southern blacks, were omitted from New Deal protections. This glaring omission was due to President Franklin Roosevelt’s reliance on segregationist Dixiecrats for his New Deal program. However, at the urging of labor leader and civil rights activist A. Philip Randolph, Roosevelt created a Civil Rights Section in the Department of Justice.  As Risa Goluboff describes in her iconic book, The Lost Promise of Civil Rights, CRS lawyers sought to extend the New Deal promise of a positive right to free labor to black domestic and agricultural workers by enforcing the Anti-Peonage Act against exploitative employers. 

Meanwhile, the labor movement helped to sow the seeds for Dr. King’s civil rights movement. Yes, some unions discriminated on the basis of race, trying to exclude blacks from good jobs.  But others, such as the CIO in the 1930s, fought racism and sought to organize workers of color.    Moreover, Black union activists such as A. Philip Randolph played a leading role in the northern civil rights movement.   Randolph eventually became a mentor of Dr. King. Along with United Auto Workers President Walter Reuther, Randolph helped to organize the 1963 March for Jobs and Freedom, where King ascended to national prominence with his famous “I Have A Dream” speech.  Responding to King’s advocacy, Congress enacted the 1964 Civil Rights Act, which prohibits race and gender discrimination in employment, enforcing the third prong of a positive right to free labor. 

Dr. King is best known for his fight against segregation and for voting rights. Towards the end of his 1963 speech, King uttered the oft-quoted line, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” This beautiful line expresses an aspiration towards which our country is still striving.  However, to focus too narrowly on this part of one of King’s speeches is to risk overlooking the truly radical nature of King’s advocacy for economic rights. Protections against race discrimination alone are not sufficient to redress the chronic poverty of people of color in our society, economic disparities which date back to slavery.

King well understood the link between racial discrimination and economic subordination.  In his 1963 speech, King pointed out that blacks were not only “badly crippled by the manacle of segregation and chains of discrimination” but also living “on a lonely island of poverty in the midst of a vast ocean of material prosperity.”  In the last years of his life, King turned his focus to the poverty in northern ghettos and supported the Poor People’s Movement. King ended his life in Memphis, where he marched with striking city sanitation workers. Speaking to those workers the night before he was assassinated, King declared, “in the human rights revolution, if something isn't done, and done in a hurry, to bring the colored peoples of the world out of their long years of poverty, their long years of hurt and neglect, the whole world is doomed.” We should all heed King's call.

Bilder on Originalism

Professor Mary Bilder of Boston College Law School has a lengthy op-ed in this morning's Boston Globe on the recent discussion of originalism as inspired by Judge Gorsuch's confirmation hearings.  This draws from her book Madison's Hand, which is a study of the drafting and re-drafting of Madison's "Notes of Debates in the Federal Convention of 1787."  A couple of excerpts are below:

The tradition of American constitutionalism, practiced by judges of all political persuasions over two centuries, has always held out an important place for history in the interpretation of the Constitution. But originalism is not constitutionalism. When the word “originalism” began appearing in legal periodicals in the 1980s, a number of influential scholars and judges, primarily on the right, quickly came to treat it as the sole legitimate method to decide constitutional cases. Originalists initially thought that the judge should interpret the text of the Constitution according only to the intent of the men who drafted and ratified it. Today, most originalists contend that a judge should abide by the text’s “original public meaning” — a term of art that originalist scholars have written thousands of pages trying to explain. ...

Madison’s notes help us see that the framers were too busy writing the Constitution that would save the country to draft the type of airtight document that originalists perceive. The first draft in early August had 23 articles. The president was elected by Congress to a single seven-year term. The Senate appointed the Supreme Court justices and made treaties. There was no vice president. There were lots of issues that they hadn’t figured out or were at odds on. They sent issues out to six small committees that came up with various parts in the final three weeks. The process was so complicated that, in late August, Madison — who became sick serving on three committees — stopped bothering to write his notes. At a moment in the convention when delegates were settling issues that we debate today, such as the Electoral College and presidential treaty powers, we have no contemporary notes from Madison. Madison worried that if “the present moment be lost it is hard to say what may be our fate.” ...

And she concludes:

Originalism requires that the Constitution be a type of document literally beyond the capacity and purpose of the framers. In his hearings, Gorsuch insisted that judges must look “backward . . . in the sense of looking at historic facts.” But when we look backward at the historic facts of the creation of the Constitution, all we see is a document written under the most trying of circumstances — to ensure a future.

The Road to the Gettysburg Address

I'm delighted to say that an article I've worked on for many years now, "The Road to the Gettysburg Address," is out in the Florida State Law Review.  I wrote this for a terrific conference at the Library Company of Philadelphia back in 2010 on Laurel Hill Cemetery in Philadelphia.  I use cemetery dedication addresses as a way of gauging attitudes towards constitutionalism.

My focus was on addresses dedicating cemeteries from 1831 (when Justice Joseph Story dedicated Mount Auburn in Cambridge) to Gettysburg in November 1863.  And while I'm deeply interested in -- and love -- Lincoln's Gettysburg address, I focus on the addresses before Lincoln remade the genre.  Those addresses --- which unfortunately very frequently weren't all that great as oratory -- reveal a fairly unified approach.  They celebrate the cemeteries for the lessons they teach about the Union and Constitution.  The cemeteries spoke to the heart and the dead through the lessons of patriotism and Union they communicated -- and also because their physical beauty.

The addresses with few exceptions (like those by Story, Justice John McClean, and Ralph Waldo Emerson) were given by pretty obscure speakers.  Sometimes they were by important lawyers like Daniel Barnard and Oliver Baldwin.  More often they were by ministers -- but largely across the board, the orators focused on the political and constitutional lessons and role of cemeteries.  The cemetery companies  were charitable organizations that harnessed the corporate form to create a place where the entire community could learn about the virtues of a national, Christian republic.  The cemeteries, it was often said, served as models of a republican government.

 This article has been years in the pipeline -- I think I actually started working on this in November 2009 and had, of course, been working on oratory in the pre-Civil War era for years and years before that.  I can recall photocopying Daniel Barnard's address to the Albany Cemetery probably back in 1998, before I realized how many other addresses there were.  And while I'm not sure I have the time -- or energy, to use a Donald Trump term -- to write something like this right now, I hope to get back to the cemetery dedication addresses after the Civil War.  Because I think the addresses at southern cemeteries in the several decades after Civil War are also very useful in explaining ideas of southern constitutionalism -- and they often reflect back on southern nationalism.  And maybe one of these days in the not too distant future I'll finally get back to ideas about jurisprudence in pre-Civil War Phi Beta Kappa addresses and also in pre-Civil War addresses to southern literary societies.  But the next paper I'll post is, I suspect, on the rule of law and the Klan in 1870s North Carolina....

Washington College Literary Society Debates on Slavery and Empire

I have a new paper on the debates about slavery and empire in the Washington College Literary Societies  in the years leading into Civil War.  This is part of the focus I've had for years now on college literary societies -- especially the University of Alabama, UNC, and Washington College -- as places of debate about public constitutional ideas and political theory.  Often times I've focused on the addresses given to those societies at graduation, at the beginning of the school year, and on holidays -- such as Washington's birthday and July Fourth.  This is also part of my search for public constitutional ideas in cemetery dedication addresses.

I'm also deeply interested in what the students had to say -- in their orations to the literary societies and at graduation, in their literary society journals, and especially in their debates.  For Washington College --- as for UNC, UGA, Davidson, Hampden-Sydney, Wake Forest, and a little for William and Mary -- we have the debate topics and often the outcomes of the debates but no transcript or even outline of the arguments.  The topics themselves, though, are very revealing -- and they reveal that the students were increasingly proslavery.  For instance, they moved from questions like "is slavery moral" in the 1830s to a more radical question, like "should the slave trade be re-opened" in the late 1850s.

This paper is focused around issues of slavery, race, and empire -- but there's really a lot more that could and should be done with the debates.  Over a number of summers I've spent weeks up in Lexington going through the records and someday soon I hope to have a paper that takes a 360 degree look at those topics and what they say about the intellectual geography of Washington College's students -- on issues from economics to individualism, morality, religion, and political theory.  (It's a great place to spend a little time each summer and I'm delighted to say that I've almost concluded that work.)  I also have a paper on the Wake Forest debates that's chugging along with my former student Elizabeth Carroll -- and we hope to wheel that out one of these days.

I also have a broader paper on proslavery and sometimes antislavery ideas at Washington College before the Civil War.

Alabama Civil Rights and Civil Liberties Law Review

I'm delighted to report that the Alabama Civil Rights and Civil Liberties Law Review has published a symposium on the Civil Rights Act of 1964.  The articles are:

Steven H. Hobbs, Alabama's Mirror: The People's Crusade for Civil Rights

Richard Delgado, The Shadows and the Fire: Three Puzzles for Civil Rights Scholars

Trina Jones, Title VII at 50: Contemporary Challenges for U.S. Employment Discrimination Law

Alfred L. Brophy, The Civil Rights Act of 1964 and the Fulcrum of Property Rights

Dorothy A. Brown, Diversity and the High-Tech Industry

Gregory S. Parks, Rashawn Ray, and Shawna M. Patterson, Complex Civil Rights Organizations: Alpha Kappa Alpha Sorority, An Exemplar 

Jasmine B. Gonzales Rose, Race Inequity Fifty Years Later: Language Rights Under The Civil Rights Act of 1964

The image is of Foster Auditorium, where Governor Wallace made his stand in the schoolhouse door -- and where, shortly afterwards, Vivian Malone Jones entered the University.

Forrest McDonald (1927-2016)

I am sad to learn from the New York Times that Forrest McDonald has passed away in Tuscaloosa.  He was a leading historian of the founding era.  My relationship with McDonald began, as happens so often for me, the old fashioned way -- through his books.  I read We the People when I was in college and was trying to get a handle on quantitative methods in history.  I'd heard that We the People was an important place to start -- and then later in a fabulous course on the American Revolution taught by Richard Beeman I read Novus Ordo Seclorum.  The latter, though it was published 30 years after We the People, was a successor in that it looked at ideology of the founding generation, rather than economic interest.  It really resonated with me -- and all the more so because had just read Bailyn's Ideological Origins of the American Revolution.  

Though the New York Times obituary emphasizes his conservative ideas (both the obit and his wikipedia page conclude with the observation that he was a self-described paleo conservative), for me the significance of his work is not that he was conservative.  It's that he communicated in crisp prose the insights about economics and ideology of the founding generation.  Ideas mattered, he argued, for the framers of the Constitution and he suggested how that was the case. bI take it the pendulum is now swinging back and we're maybe not taking ideas as seriously as we once did. Maybe that will change again soon and we'll be back to focusing on ideas.

One of my great hopes when I moved to the University of Alabama was that I'd have a chance to spend some quality time with McDonald.  I thought it would be a great treat to get his help on my own work on the ideology and economics of pro-slavery thought.  Alas, I did not have the chance to spend much time with him; we served on a dissertation committee together and he was kind enough to ask about my work whenever we crossed paths, thought that wasn't as frequent as I would have liked.

Constitution Day in Hillsborough

I'm delighted to announce that Robert Ireland and I will be speaking at the Hillsborough Presbyterian Church on September 17 at a Constitution Day celebration sponsored with the Orange County Historical Museum.  Close readers of this blog may recall that the Orange County Historical Museum is in a building once known as the "Confederate Memorial" Library up in Hillsborough.  And that it was the subject of a renaming controversy recently.  The Historical Museum's building is on a site of much importance -- back in 1788 the North Carolina legislature met there to discuss ratification of the Constitution.  They could not agree and ratification took place later in Fayetteville.  Robert will be talking about the ratification of the Constitution and then I'm going to pick up with the current controversy over Confederate symbols and the conflicting values at stake in preserving, modifying, or removing names and monuments from public property.  The Hillsborough Presbyterian Church is a perfect place to talk about the use of exhumation in the controversies over memory.  One of the signers of the Declaration of Independence who was buried in the churchyard was exhumed and moved out to Greensboro.  This should be really interesting and if you're in the neighborhood I hope you'll join us.  It's September 17, from 7 to 8:30, 102 West Tryon Street in Hillsborough.

The Sticky Slope from Obergefell to Polygamy

Polygamy emerged as a recurring topic in the avalanche of commentary unleashed almost the moment that the Supreme Court extended marriage equality to same-sex couples in Obergefell v. Hodges.  Since the topic is bound to come up in law school discussions in classes as well as faculty workshops, it’s worthwhile to pause and ask why.  Articles in Slate, Politico, the New York Times and Religious Dispatches rushed to debate whether polygamy will be the next frontier in marriage equality.   The deluge is partly explained by the perennial popularity of polygamy as a topic – from TV shows Big Love and Sister Wives to immense press coverage when a state decides to enforce anti-polygamy laws – and the freedom of pro-gay commentators to say what they really think once the Supreme Court finally ruled.  But why just polygamy?  Why not child marriage and incest, two other outré expressions of intimacy that commanded quite a bit of the Court’s attention in oral arguments.    

One answer is that the slope is more slippery in the direction of polygamy than it is in child marriage and incest.  The path from Obergefell toward marriage equality for polygamists might be short and clear, while the route to abolishing age-of-consent and incest statutes could be more like a forested hillside full of social and legal impediments to marrying your sister or a 6^th grader.  That’s probably true, but there path from Obergefell to polygamy is probably a lot more circuitous than many people think.  

 

Some Heroes of the Sterilization Movement

Elizabeth Troutman and I have a paper up at ssrn on the North Carolina eugenics movement.  This was inspired by the North Carolina legislature's compensation program, but what we're really interested in (more than the contemporary movement for compensation) is to understand the movement in North Carolina.  How did the movement for sterilization arise, how was North Carolina largely a dependent variable in that national movement, and then how did it function in our state.  Getting at the last issue involves difficult questions, like who was selected for sterilization and how did the administrative state process petitions for sterilization.  To me one of the most haunting aspects of all of this is that the state supplied pre-printed forms to be used in preparing petitions for approval by the state Eugenics Board.  That is, the state was ready to assist -- indeed to push -- for sterilization.

But one of the most interesting aspects of this is that almost everyone who was approved for sterilization had either themselves "consented" or had family members who "consented."  And that raises a very important question of what "consent" looked like -- and just how the state coerced individuals and their family members to "consent."  This is hard to reconstruct now, because the individual records are sealed -- and even if they were open, it looks unlikely that they would show the level of coercion in much detail.  Many of the Eugenics Board's biennial reports reflect the concern over getting people to agree to sterilization.  They note in particular that men were particularly resistant -- and in fact over time, the percentage of men sterilized decreased dramatically.  Perhaps that reflects the increasing resistance of men; it may also reflect that over time the percentage of institutionalized people who were sterilized decreased, and men in the community were harder to coerce than women.  At any rate, the state was deeply interested in coercing individuals into accepting sterilization.

Charleston, Black Originalism, and a Living Constitution (Part B)

The connections across time of the physical space of the old Mt. Zion church where the South Carolina Black Convention was held in 1865 and the modern A.M.E. churches at Mother Emanuel and Mt. Zion in Charleston that I discussed in my prior post have led me to think about how the voices from that convention 150 years ago still speak to us.  I previously quoted from the convention documents, but after the shooting at Mother Emanuel I re-read the document and was struck by the following:

  “. . . we have been deprived of our natural rights, which are founded in the laws of our nature, which consist of personal liberty, the right to be free in our persons, and the right of personal security and protection against injuries to our bodies or good name.”

What would the participants that week in 1865 meeting in Mt. Zion have thought about the June 18^th killings?  How frustrated would they have been that security from racial violence remains, 150 year later, so fragile and elusive even in the very congregation that some of the leaders and members attended?  If those authors were correct (and surely they were) that the “right of personal security and protection” is essential to liberty and equality, then the promise of the Fourteenth Amendment remains a promise unfulfilled.  It is unfulfilled when police departments fail to protect African-American and other communities of color from violence; it is unfulfilled when police officers wrongly perceive black men and women as "threats" and needlessly resort to violence; it is unfulfilled when victims of domestic violence cannot depend on state agencies to protect them from abusers; it is unfulfilled when a culture of violence clothes itself in rights only to perpetuate itself on the innocent.  

Charleston, Black Originalism, and a Living Constitution (Part A)

I was going to write an arid final summary post on Black Originalism to finish my guest stint here at the Lounge.  But in light of the horrific act of racial terrorism at Emanuel A.M.E. in Charleston and the window the country has had on the past and present of a remarkable institution and people of Mother Emanuel, I have decided to do two final entries recalling something from an earlier post and look at how Reconstruction history lives with, around, and in us. 

Mt. Zion A.M.E. Charleston

I previously discussed the African-American convention in Charleston of November 1865, held at what was then the Mt. Zion Presbyterian church.  I have been learning more about Mt. Zion the past few weeks and wanted to explore its connections to Emanuel A.M.E. and also the connections between the ideas from the Charleston Convention and what they might say to us after this month’s tragedy.  In this post I will focus on the Reconstruction history of the two A.M.E. churches and in my final entry I will consider the convention and what it might say to us. 

 

Black Originalism Part 5: Frances Watkins Harper and the Intersectional Perspective

Frances Ellen Watkins Harper

As I have suggested in prior posts (here, here, here, and here), ideas of freedom and citizenship developed in the black public sphere in ways somewhat different than in the dominant white sphere of the mid-nineteenth century.  Of course a parallel alternative discourse was occurring in the women’s movement.  Prior to the war there was some overlap and coordination in these two spheres, although the fissure between the two was already present before the war and famously became a chasm afterwards.  Nevertheless, ideas of equality and freedom in each sphere influenced the other.  And for black women such as Mary Ann Shadd Carey and Frances Ellen Watkins Harper, it was critical to negotiate this post-war split in order to press for more progressive positions in each area.

 

The work of someone like Frances Harper was even more critical given the hazards of the newly emerging citizenship, forged in battle and relying heavily on a martial and exclusively male framing of full citizenship.  One of the most common synonyms for citizenship and its rights and privileges in the black public sphere was “manhood.”  In such a context Harper’s May 1866 speech at a national women’s rights convention is one of the most important statements of the intersections of race, gender, and class of the nineteenth century.  

Cumberland Law Review: CFP on Voting Rights Act of 1965

I have it on good authority that:

The Cumberland Law Review is doggedly searching for articles, insights, and ideas that implicate a subject that we believe our journal is uniquely situated (and arguably obligated) to explore: a sort of retrospective of the Voting Rights Act of 1965. Our host city, Birmingham, Alabama, is one of the more prominent characters in our national recollection of the Civil Rights era and the 20th century ills that necessitated legislation such as the VRA and the Civil Rights Act.

In light of the VRA’s 50th anniversary and recent SCOTUS decisions (from Shelby Co. to Ala. Legislative Black Caucus), we think it appropriate to devote enough space in one of our forthcoming editions to an articles symposium on point. As of now, though, the quantity and quality of articles we’ve received along this vein have been underwhelming, so we’re casting a wide net in soliciting contributions.

If you have the time or interest in submitting or pitching articles, or just touching base with thoughts and suggestions re: other people to reach out to, please reach out to either Walker Mason Beauchamp, Editor-in-Chief, Cumberland Law Review [email protected], 205-821-5800 or our Articles Editor, Stewart Alvis.  Stewart J. Alvis, Acquisitions Editor, Cumberland Law Review [email protected]

The editors are also publishing work related to civil rights and legal history more broadly, including some never-before published papers of Judge Horton (who presided over the Scottsboro case) and also a short essay from me on graduation addresses at Howard College (a predecessor of Samford University) in Marion, Alabama, before the Civil War.  This is a companion to longer articles I've published on graduation and literary addresses at the University of Alabama and at UNC.  There are fewer addresses available for Howard College in this era, so I'm going to focus on the ways that the addresses linked economic progress, law, and slavery.  I think this will allow us to see in a small compass some central tendencies of southern thought in the decade before Civil War.

Sources for University, Court, and Slave

One of the things I want to do is post some of the sources I used in University, Court, and Slave.  A lot is available already on the net, especially books.google, including Thomas R. Dew's Review of the Debates in the Virginia Legislature and A Digest of the Laws, Customs, Manners, and Institutions of Ancient and Modern Nations, William A. Smith's Lectures on the Philosophy and Practice of Slavery;  Thomas R.R. Cobb's An Inquiry into the Law of Negro Slavery, Justice John A. Campbell's many articles on the legal history of slavery, Ebenezer Starnes' novel, The Slaveholder Abroad, and Caroline Hentz' Stolen Child.  But some of the sources aren't readily available on the net.  I'm going to start with Elisha Mitchell's book The Other Leaf of the Book of Nature, which presented a proslavery attack on Francis Wayland.  Mitchell's book was more moderate than other proslavery attacks on Wayland, such as those by Albert Taylor Bledsoe of the University of Virginia and George Baxter of Hampden-Sydney.  Mitchell was a professor here at UNC and we have a science building named after him.

Some of my key sources are the addresses given at college literary societies and at college graduations.  A lot of them are now easily available on the net, such as William Gaston's 1832 address here at UNC and his 1835 address at Princeton.  Increasingly the University of Alabama literary addresses are on the net, such as Joseph W. Taylor's 1847 address -- but his more important one to Southern University isn't yet.  Some of the other addresses at Princeton and a number of other schools are scarce, such as James McDowell's 1838 address that is quite critical of abolitionists.  This represents a mid-way point for McDowell, who was shifting towards a more proslavery position.  There are two addresses, also from Princeton, that are quite important: those by David Kaufman and Abraham Venable ,  Venable also delivered a graduation speech at Wake Forest.  In fact, Wake Forest produced a lot of proslavery addresses, such as S. S. Satchwell's address at Wake Forest in 1858, which provided a "scientific" defense of slavery.  I also use several more moderate Phi Beta Kappa addresses by Timothy Walker at Harvard in 1850 and Daniel Lord at Yale and William Greene at Brown in 1851.  There were, to be sure, a few addresses that were anti-slavery or otherwise cut against the grain at southern schools -- like Gaston's 1832 address at UNC, William Rodman's address at Wake Forest, and Henry Tutwiler's 1834 address at the University of Alabama.  The artist William Richard's  address at Erskine fits here, too.

RMT Hunter's 1839 address to UVa alumni is more moderate than you might expect (though it has some proslavery references).  Hunter is someone who looms large in my monument dedication work and for a talk at VMI in the early 1850s.  He's more openly proslavery later in life, thought still more moderate than many in Virginia.  Many of the UVA addresses deal with federalism and its implications for slavery, such as M.R. Garnett's 1850 address to alumni. Washington College has people on both sides of the debate -- some antislavery , especially President Henry Ruffner, and proslavery, notably Ruffner's replacement as president, George Junkin.  Both Ruffner and Junkin delivered revealing addresses, as did Junkin's son.  I make some use of John R. Thompson's 1850 graduation graduation address at Washington College and E.L. Magoon's 1846 Washington College address. In fact, I use addresses at schools extensively.  This goes back to work I've been doing for years on northern literary society addresses -- sort of Emerson's American Scholar in context.  One of these days I will get that project finished.  That method has proved very useful in gauging the nature of ideas in circulation on southern college campuses.  One of my favorites along those lines is Joseph W. Taylor's Plea for the University of Alabama.  Taylor also gave a much more moderate address at Howard College and a more radical address, on the eve of Civil War, at Southern University in Greensboro, Alabama.  There are some other quite revealing addresses at Alabama, including those by Edward Bullock, John Archibald Campbell (and at UGA), and Willim Gilmore Simms.

The UVA faculty and students loom large in this story.  I use Albert Taylor Bledsoe's Liberty and Slavery book, several of George Frederick Holmes' articles, and three of James Holcombe's speeches -- his 1853 address to UVA alumni, his 1856 address to the Virginia Historical Society, and his 1858 address to the Virginia Agricultural Fair -- which focused on slavery as consistent with natural law.  I also use the Virginia University Magazine extensively.

And then there are the debates around secession, in which academics loomed large.  James Henley Thornwell delivered a sermon on what was at stake with Lincoln's election.  James Holcombe spoke to the Virginia legislature on secession.  Thomas Cobb of Georgia spoke several times publicly in favor of secession -- and later took to the battlefield to defend the Confederacy.  

I'm now very interested in the Garland family of Lynchburg, Virginia -- because their members appear in so many different roles in the story of schools and slavery.  Hugh Garland appears as an orator at Hampden-Sydney and at the end of his life as a lawyer for Dred Scott's owner.  His brother Landon Cabel Garland was professor at Washington College, then later president at Randolph Macon and at the University of Alabama.  Their cousin (I think it is) Samuel Garland purchased about 50 humans from Washington College and sent them to work on the family's plantations in Mississippi. I talk about their story some more at The Conversation.

One of my favorite sources, about which I want to talk a lot, is the trial of Frederick Barnard by the University of Mississippi trustees for taking the testimony of a slave against a student.  

You can get a preview of University, Court, and Slave on books.google.

Statutory Anti-Canon

Having taken a breather from blogging to get some writing done, I will finish my entries on Black Originalism in the next couple of weeks.  For this post, however, I want to explore the idea of the statutory anti-canon.  I explain this below, but I am particularly interested in ideas readers have for such a list, so please post a comment if you have one.

The concept of an anti-canon in constitutional law was developed a few years back (by Richard Primus, Jack Balkin and Sanford Levinson, among others, and more recently by Akhil Amar and Jamal Greene).  The basic thrust is that there are key constitutional law cases that are so reviled that they are the antithesis of what judges, scholars, and the public think constitutional law should do.  The obvious members of this group—cases Akhil Amar described as sitting in the last circle of constitutional hell—are Dred Scott, Plessy, and Lochner.  When a justice or scholar wants to ramp up criticism of an opposing constitutional position, they show how it is the same as one, two, or all three of these cases. 

What I am wondering is whether some federal statutes might qualify for such a dubious distinction. Obviously an anti-canon of statutes will have different qualifications than the anti-canon of cases.  And I know I am leap-frogging the question of whether there should be a “canon” of statutes, although I think one could explore that productively too. 

To get this started, I list below the fold my own candidate (hint: it is from the 19^th century).  My operating parameters are that the statute must have been repealed by Congress or overturned by the Supreme Court, that it implemented or otherwise raised constitutional issues, that it faced significant opposition not only when passed but also when implemented, and that later generations came to a consensus view that the legislation was contrary to its fundamental values/commitments.  Note, however, that while there may be agreement that the statute was wrong, the reasons for why it was wrong may vary quite a bit (as is true of anti-canon cases).  In part these parameters are meant to focus on statutes that are now widely viewed as wrong (and not on current statutes that people just don’t like – I leave that to other blogs and bloggers).  And the parameters are loose guides only.  So with that, my entry is . . . 

Black Originalism, Part IV: South Carolina Convention of 1865

Alonzo Ransier

In my last post I discussed the Nineteenth Century Black Convention Movement and how the 1864 National Convention in Syracuse started a brief but important series of conventions.   For this post I look at one of the more prominent of the state conventions, held in Charleston, South Carolina, in November of 1865. 

Richard Cain

The Charleston Convention is frequently cited both because it produced an interesting set of substantive documents and because it included several future political leaders in Reconstruction South Carolina, such as Richard  H. Cain, Francis L. Cardozo, and Alonzo J. Ransier.    

Francis Cardozo

This convention has received some attention by originalists because it mentions the right to bear arms, and it is the one black convention from the period to have made its way into a Supreme Court footnote (in McDonald).  The problem, however, as I discuss below the fold, is that extracting the right to bear arms from the document in this way does not do justice to either the richness of the document or the role and context of the right to bear arms for the members of the convention.  

Black Originalism Part 3: The Syracuse Convention of 1864

Having set the stage in prior posts (here and here), I want to delve a bit into texts from the Civil War/Reconstruction black public sphere.  The first I will highlight is the National Convention of Colored Men, held in Syracuse in October 1864. 

The Black Convention Movement of the nineteenth century is an important and undervalued source of public debate in the black public sphere.  The movement itself arose as part of the abolitionist movement, and a number of important conventions had been held in the north prior to the war.  (The Colored Conventions Project at the University of Delaware has a wonderful resource webpage for these conventions here.)  Both because it was held as the war’s end was in sight, and because of the issues addressed, the Syracuse Convention of 1864 can be seen as the first Reconstruction black convention.  In the ensuing five years many more—local, state, and national—would follow (including the Colored National Labor Union Convention of 1869, pictured to the right), in part as an extension of the civil society movement the Syracuse Convention aided by founding the National Equal Rights League at Syracuse. These leagues, along with Union Leagues, were critical focal points for early Reconstruction black activism and community-building. 

Black Originalism, Part 2

Crispus Attucks

In my last post I introduced the idea of “black originalism.”  Before delving more into some of the materials I am looking at, I want highlight what are likely to be some key points that frame the project.  Some of these might be described as methodological, others normative.  But in either event from what I have looked at so far, I think these provide a bit of the framework for the project (subject to ongoing revisions, of course!).       

John Brown

First, Black Originalism as a project should prioritize the Reconstruction Amendments and their implementation.    A common theme of black writers and speakers from the 1860s is that the antebellum United States—not just the South, but the entire country—contained important parallels to British America, with the Civil War being a second Revolution.  As activist and lawyer John Rock said, “the John Brown of the second Revolution is but the Crispus Attucks of the first.”   Reconstruction was a second founding, and should be treated as such.  This will be a markedly different view than is usually taken by originalists, who tend to privilege the founding and see Reconstruction as a restoration to a more correct (more perfect?) constitution without slavery.