The Faculty Lounge

Miranda Warnings Date Back to 1748

I filed this brief of Historians of Criminal Procedure in Vega v. Tekoh this week that shows Miranda warnings date back to 1748.  (Thanks to Steve Lubet for asking me to post this.  Steve is no stranger to discovering fascinating history of the warnings -- Gov. Wise gave them to John Brown in 1860, Lubet, 52 Ala. L. Rev. 425 (2001).)  A true pleasure to work with Mark Godsey (Cincinnati), Tim Hitchcock (U of Sussex and a co-curator of the Old Bailey Session Papers), Tracey Maclin (BU), Robert Shoemaker (U of Sheffield and co-curator of the Old Bailey Session Papers), Simon Stern (Toronto), and George Thomas (Rutgers).   There were five examples we found that pre-dated the Bill of Rights -- research in the Old Bailey Papers is not easy.   So I want to particularly recognize Tim Hitchcock who located the 1748 case and my research assistant, Nicole Singleton (2L Duquesne), who found two of the pre-Framing cases.  

https://www.supremecourt.gov/DocketPDF/21/21-499/220472/20220406170837528_Tekoh%20final%20brief%2042283%20pdf%20Oliver%20--%20filed.pdf

Hamann, "K is for Contract—Why is it, Though?

Hanjo Hamann (Max Planck Institute for Research on Collective Goods, Germany) has posted to SSRN K is for Contract—Why is it, Though? 106 Minn. L. Rev. Headnotes (2022). Here is the abstract:

Just like Supreme Court justices, law students in the United States almost unanimously abbreviate the word “contract” using the capital letter K. Despite this consensus, no writer has ever explained why a word that starts with “c” should be abbreviated to “K” instead. The present paper investigates this question, following threads of legal discourse into various interconnected societal contexts―including Boston high society, 19th century baseball, German intellectual property law, the neuroscience of sleep, and Civil War contract management. I show that the K-for-Contract convention probably originated between 1900 and 1949, and may have come, of all places, from satirical military lingo. In arriving at this finding, the present essay offers an intriguing case study of legal narratology and the propagation of lawyerly conventions. By empirically surveying contract law professors to trace the origins of K-for-Contract, the study also shows that even seasoned instructors who use and teach this legal shorthand can no longer justify its usage. This proves to be an instructive illustration of boilerplate effects, or what one Contracts professor called the “arcane underpinnings of the rules we all follow."

The full essay is available here.

I've always wondered about that K! 

They Were Her Property: White Women as Slave Owners in the American South

Stephanie E. Jones-Roger "makes a bold argument about the role of white women in American slavery.... Stephanie E. Jones-Rogers draws on a variety of sources to show that slave-owning women were sophisticated economic actors who directly engaged in and benefited from the South’s slave market. ... [E]nslaved people were often their primary source of wealth. Not only did white women often refuse to cede ownership of their slaves to their husbands, they employed management techniques that were as effective and brutal as those used by slave-owning men. White women actively participated in the slave market, profited from it, and used it for economic and social empowerment. By examining the economically entangled lives of enslaved people and slave-owning women, Jones-Rogers presents a narrative that forces us to rethink the economics and social conventions of slaveholding America." (Yale University Press.)

This is an important book. A very important book. A couple of thoughts. First, a few white women Southerners were disgusted by slavery. Stephanie Jones-Rogers recognizes this; Angelina and Sarah Grimke sisters were very against slavery. (212 n.40.) Second, Southern slave-owner females were (for the most part) proslavery. Third, Southern white slave-owners males were worse than Southern white women slave-owners mostly (e.g., 8-10, Martin v. Georgia, 25 Georgia 494 (1858)).

Slavery and the History of Federal Powers

Revisionist scholars like Jack Balkin and Richard Primus argue that expansive federal powers are consistent with the principles of the Founding, the views of the early Congress, and/or Marshall Court decisions like McCulloch.  In a forthcoming article, I argue that this scholarship ignores slavery’s profound influence on the Constitution. Before the Civil War, virtually everyone agreed that Congress had no power to interfere with slavery in existing states. Because slavery was fundamental to the political, social, and economic order of the South, this national consensus on slavery dictated that Congress’s powers were extraordinarily narrow by today’s standards.

Of course, slavery’s influence on federal powers is well-known and widely accepted among historians.  My article seeks to “move the ball” by connecting this historical scholarship to the revisionist work of Balkin, Primus, and others. Although I am sure that they are well versed in history, this only makes their lack of any serious engagement with slavery so difficult to understand. (For example, in five articles on the topic, Primus’s most in-depth consideration is found in his most recent essay, which has only 3 pages of discussion). I hope my article encourages them to give more serious consideration to slavery’s influence moving forward.  As the current debates over teaching critical race theory have made clear, we must acknowledge and understand the implications of racism in the law in order to fight against it.  In fact, I argue that slavery’s influence on the historical understanding of federal powers provides a strong reason to reject any theory of interpretation that makes history dispositive of constitutional meaning (including Balkin’s Living Originalism, at least with respect to powers).

My article also engages with the work of David Schwartz, who, unlike Balkin and Primus, does seriously engage with slavery while still arguing that history supports expansive federal powers. In my opinion, however, he does so only by underestimating slavery’s influence.  In sum, Schwartz seems to suggest that, at least for the early Congress and Marshall Court, slavery was an exception to otherwise broad federal powers. His argument, however, gets it exactly backwards. Slavery did not operate as an external constraint on otherwise broad federal power. Instead, slavery was a powerful motivation for the antebellum consensus that all federal powers were limited in scope. This distinction matters, and we do a disservice to history by minimizing slavery’s pervasive influence on constitutional history. Only by fully acknowledging slavery's role can we  build the best case for the type of living constitution that would allow for meaningful change in the Supreme Court's federalism doctrine.

Arts & Justice Poetry Reading at Stanford

Earlier this month, I was honored to read poetry--and participate in a discussion--with Lakota poet Layli Long Soldier. Poet Monica Sok moderated. Long Soldier read from her groundbreaking collection Whereas, which responds to a 2009 Congressional apology to Native peoples for the numerous atrocities the U.S. committed against them but ends--characteristically and yet ironically--with a disclaimer. As Long Soldier notes, the apology was quietly signed into law, without any public acknowledgement or ceremony involving any of the nearly 600 Native Tribes within the United States. She interrogates the process and meaning of the apology, bringing to light the hypocrisy of, and the harms caused by, law's depersonalized language.

I read my poems about race, social justice, and colonialism, some of which are in my chapbook White Out, and others of which are in my full-length collection The Body's Alphabet.  I read a few uncollected poems as well. Some of the work I read explores my experiences working as an attorney for Tribes, and other pieces address racial justice and my experiences as a white person in a racially unjust world more generally.

The reading is recorded and available here. Hearing Layli Long Soldier read and discuss her work helped me think about law and the effects of colonialism in new ways. I highly recommend it!

The Shortlisting of Phyllis Schlafly

This post is part of a series about my new book Shortlisted: Women in the Shadows of the Supreme Court, co-authored with Hannah Brenner Johnson. The first post offered an overview of the book. The second shed some light on how we found the women profiled in the book. The third examined what it means to be "shortlisted." And now I turn to a shortlisting featured in the new FX show "Mrs. America."

Are you watching “Mrs. America”? If not, you should, if for no other reason than to enjoy the star-studded cast that includes Cate Blanchett as Phyllis Schlafly, Niecy Nash as Flo Kennedy, Rose Byrne as Gloria Steinem, Uzo Aduba as Shirley Chisholm, Tracey Ullman as Betty Friedan, Margo Martindale as Bella Abzug, and more. As my University of Houston colleague, the historian Leandra Zarnow, recently wrote in the Washington Post:

Covid-19 has denied political junkies the daily twists and turns of a typical presidential race, and left Americans scrambling for entertainment. This has helped turn the FX show “Mrs. America,” currently streaming on Hulu, into the latest quarantine hit. “Mrs. America” resurrects the dramatic final chapter of the protracted battle to secure an Equal Rights Amendment to the Constitution, first introduced in 1923. It carries viewers from the heady moment when the ERA passed both houses of Congress in 1972 through the unexpected failure to ratify the amendment by a 1982 deadline. Conservative crusader Phyllis Schlafly is the figure driving “Mrs. America.” Creator Dahvi Waller dreamed up the show thinking former secretary of state Hillary Clinton would be well established in the West Wing by the time it aired, and a show about Schlafly would be a study of a vanishing force in U.S. politics. Clinton’s unexpected loss, however, created a series in which the anti-hero is the conqueror.

The series reminds us of forgotten moments in the women’s rights movement and illustrates how the politics of the 1970s are still very much at play today. Spoiler alert—you might not want to keep reading if you haven’t seen the series finale yet. (Otherwise, continue on to read about a shortlisting of Schlafly and to see some gems I uncovered while researching presidential archives.)

Chester Arthur's Ghost

I have posted to SSRN my new article, which is titled "Chester Arthur's Ghost: A Cautionary Tale of Campaign Finance Reform." The Mercer University Law Review published it this spring as part of their annual symposium issue. Here is the abstract:

Chester Arthur may not be the first name that comes to mind when one thinks of major figures in the rise of campaign finance law. But despite his obscurity, he deserves to be ranked among the leading reformers in American history. As president, he signed into law a reform that cleared the way for the modern system of campaign finance to take root.

This article puts the current debate over money in politics in historical context by examining the first major campaign finance reform in American history. The 1883 Pendleton Act is remembered today for establishing a professional, non-partisan civil service. But equally important, it banned the use of political assessments (i.e. mandatory dues imposed on federal and state officeholders by the political parties) to fund federal election campaigns.

President Arthur played an important role in the Pendleton Act’s success. After signing the bill into law, he supported efforts to enforce the new rules and reform the major parties’ campaign finance practices. In the long run, Arthur and the reformers achieved their goal of ending the parties’ use of political assessments to fund campaigns. At the same time, however, the Pendleton Act shifted election financing from the political parties to corporate America and wealthy donors. Thus, instead of reducing the influence of money in politics, the Pendleton Act ushered in a new and even more controversial era in campaign finance law, one that continues to haunt our politics today.

The story of the Pendleton Act is thus of much more than just historical interest. It demonstrates how deeply rooted the problem of money in politics is in American history. Long before the Supreme Court heard cases like Buckley v. Valeo and Citizens United v. Federal Election Commission, money played a highly controversial role in American elections. As the story of the Pendleton Act demonstrates, campaign finance reforms have had unintended—and sometimes quite unwelcome—consequences from the very beginning.

James Madison and Citizens United

I have posted to SSRN my new article, which is titled "James Madison, Citizens United, and the Constitutional Problem of Corruption." The American University Law Review is publishing it this spring as part of their annual symposium issue. Here is the abstract:

One of the most controversial decisions in the modern history of the Supreme Court is Citizens United v. Federal Election Commission. In a 5-4 ruling, the Supreme Court struck down the ban on corporate independent expenditures. The majority defined corruption in narrow terms and held that quid pro quo corruption was the only constitutionally permissible basis for campaign finance regulation. The decision set off a storm of outrage. President Obama even took the remarkable step of condemning the ruling during his State of the Union Address. Recent polls show that the public still overwhelmingly opposes the majority’s ruling in Citizens United.

On the tenth anniversary of Citizens United, this Article puts the constitutional problem of corruption in historical context by examining the political career of James Madison. The Citizens United case turned on the First Amendment’s freedom of speech clause. Madison wrote the First Amendment while he served in Congress. He also played a key role in drafting the Constitution and in authoring the Federalist Papers, which explained and defended the Constitution during the ratification debates. Nearly two centuries after his death, Madison looms as large as ever in American constitutional law. The Supreme Court still consults his writings and career for guidance in interpreting the Constitution. Madison’s appeal even transcends traditional divides, as justices across the ideological spectrum routinely cite him.

The story of Madison’s political career thus brings a unique and important perspective to the Citizens United ruling. The underlying issues of free speech—as well as the threat of corruption posed by powerful financial interests—were well-known to Madison. One of the most important constitutional theorists in history, he was also a career politician, serving as a four-term member of Congress and later as a two-term President of the United States. In addition, he helped Thomas Jefferson found the Democratic-Republican Party (known today as the Democratic Party), which meant that Madison spent his life not only as a public intellectual but also as a practical politician engaged in party building. Madison’s political experiences thus provide a revealing glimpse into how the First Amendment’s author approached the issue of money in politics when it came to his own election campaigns.

The full article is available here.

Thinking About Equality Claims in the Context of Federal Indian Law

I wanted to share my review, just published in Jotwell: Equality, of Bethany Berger's excellent piece, Savage Equalities, on the varied meanings of equality in the context of Federal Indian Law and how best to evaluate equality claims relating to tribes and tribal rights. This article is a must-read for those who teach or write in the field as well as for those who teach or write on Civil Rights and Race & the Law and want to think more about how tribes and Native individuals fit in.

Swanson, Race and Selective Legal Memory

Kara Swanson, Race and Selective Legal Memory.  Forthcoming Columbia Law Review.

In 1858, the United States Attorney General issued an opinion, Invention of a Slave. Relying on the Supreme Court’s recent declaration in Dred Scott v. Sandfordthat African Americans were not citizens, he created a formal racial barrier to the patent system, declaring inventions by all African Americans, enslaved and free, unpatentable. Within a few years, legal changes that overruled Dred Scott and abolished the law of slavery rendered the opinion obsolete. This brief opinion became, as far as lawyers and legal scholars were concerned, forgotten. Unlike many overruled opinions dropped from the legal canon, however, Invention of a Slave and the associated story of an enslaved blacksmith who invented an innovative plow have been continuously remembered. Women and men committed to fighting the legacy of slavery maintained both in the collective memory of those seeking full civil rights for African Americans. Our legal forgetting was an act of persistent blindness to their efforts and publications. This Essay excavates the generations of African American writers and activists who have worked to remember the opinion and argues that legal forgetting has carried a cost. Their remembering was not casual storytelling but rather deliberate, strategic, and political. I offer Invention of a Slave as a case study of race and selective legal memory, tracing an unacknowledged color line that demarcates legal memory and the costs of that line. Because of our forgetting, the opinion appears as an obscure part of the antebellum past. When we understand their remembering as a political act, we can see what they have always seen: There is a connection between the patent system and the legal and social definition of citizenship. At a time when the boundaries of citizenship and the contours of who is worthy to be considered an American are hotly contested in ways related to race and ancestry, learning from those who remembered Invention of a Slave offers lessons that link this piece of the past to our present and future, with implications both for the patent system and for our on-going conversation about race, equality, citizenship and the laws that affect them.

Francis Daniel Pastorius Reader

The Francis Daniel Pastorius Reader is Penn State University Press.  It has been works for a lot of years—for years.

Francis Daniel Pastorius was one of the first German settlers to Pennsylvania, every late seventeenth and the early eighteenth century.  This monumental anthology presents a selection of his many writings in one volume.

Pastorius sailed to North America as a Pietist but found a unique home among the Quakers in Pennsylvania. Within this early modern religious context, he was a lawyer, educator, and community leader; a polymath; and a prolific writer and collector of knowledge. At the turn of the eighteenth century, Pastorius held one of the largest manuscript collections in North American. His collecting, curation, and dissemination represents a unique look at the ways information was stored, processed, and utilized during the seventeenth and eighteenth centuries in both North America and Europe. This rich selection of Pastorius’ writings on religion, education, gardening, law and community, and the colony of Pennsylvania—as well as letters, poems, and numerous encyclopedic and bibliographic works—shows the work of a true humanist in action.

Pastorius’s works have long been important to archival study of early German settlement and the Atlantic world. Now available together, transcribed, translated, and annotated, his writings will have widespread significance to the study of early American literature and history.

 

Judge Ronald Longstaff

I recently wrote an article on the life and career of Judge Ronald Longstaff, a highly regarded federal judge in Iowa. The article is titled “Common Sense and Compassion: A Judicial Biography of Ronald Longstaff” and it was published last fall by the Drake Law Review. Here is the abstract:

For over four decades Ronald Earl Longstaff served the United States District Court for the Southern District of Iowa, first as a federal magistrate and then as an Article III federal judge. Longstaff’s professional life provides a unique window into the Iowa bench and bar from the 1960s to the 2000s. Over the course of his career, Longstaff heard a remarkably diverse range of cases, from civil rights actions to commercial disputes to murder trials. A highly respected and admired judge, Longstaff exemplified the two qualities he viewed as central to judicial service: compassion and common sense.

Judge Longstaff’s life is also a story of perseverance and triumph over adversity. As a child in Pittsburg, Kansas, he was diagnosed with cerebral palsy. The treating physicians advised Longstaff’s parents to institutionalize him, a common practice in the 1940s for children with cerebral palsy. But to Ronald Longstaff’s good fortune, his parents ignored the doctors’ advice. The Longstaffs’ decision to keep their son in school made it possible for him to achieve his full potential, which eventually included decades of service as a distinguished federal judge.

As part of the project, I did a number of interviews with Judge Longstaff at his home in West Des Moines. It was an absolute pleasure to get to know him. Dick Lyford, the president of the Historical Society for the Southern District of Iowa, joined me for all of the interviews and provided invaluable assistance to me. Dick also arranged for a court reporter to transcribe the interviews. 

If you are interested, here is a link to the full article.

Babe Ruth’s Candy Bar

The distinguished sportswriter and baseball biographer Jane Leavy has a new book out on Babe Ruth. It’s called The Big Fella: Babe Ruth and the World He Created. Leavy’s book is a New York Times best seller, just like her biographies of Sandy Koufax and Mickey Mantle.

Brian Lamb interviewed Leavy on his CSPAN program Sunday night. During the interview she told the interesting story of the legal battle between Babe Ruth and the makers of the Baby Ruth candy bar.

The candy, which is still made today, became a tremendous commercial success at the exact moment that George Herman “Babe” Ruth Jr. became the biggest superstar in baseball history. The timing was probably not a coincidence.

Otto Schnering—owner of the Curtiss Candy Company of Chicago—insisted that the candy’s name referred to former President Grover Cleveland’s daughter, Ruth, who was born in 1891. But the only thing that rang true about Schnering’s claim was that the Cleveland baby was known as “Baby Ruth” at the time of her birth. The rest of his story did not hold up.

The Great Molasses Flood of 1919

Today marks the 100th anniversary of the Great Molasses Flood. Despite its absurd-sounding name, the flood was a grave and tragic event for the city of Boston. Shortly after 12 noon on January 15, 1919, a massive storage tank burst and sent a deadly wave of molasses flooding across two city blocks in Boston’s North End. By the time the molasses came to a stop, 21 people had died and more than 100 had suffered serious injuries.

The flood likely resulted from a design flaw that made the storage tank vulnerable to temperature fluctuations. The Purity Distilling Company and its parent corporation, United States Industrial Alcohol, paid little heed to safety. They built a poorly constructed tank in the middle of a busy wharf district. The owners also had advance notice of trouble. The tank leaked so much that neighborhood children frequently came by to taste the molasses streaming down the sides of the structure. Months before the disaster, the foreman repeatedly warned management that the tank could explode, but his superiors brushed aside his concerns. As gases built up within the tank, its walls began to vibrate ominously. When the tank finally erupted, the wave of molasses that roared out of it weighed 20 million pounds, stood 25 feet high, and moved at 35 miles per hour. No one in its path had a chance.

The Plantagenets

I am pleased to report that BBC’s historical documentary The Plantagenets is now available in high definition on YouTube. It is hosted by the distinguished medievalist Robert Bartlett, an emeritus professor of history at the University of St. Andrews.

The Plantagenets ruled England from 1154 to 1485, the longest reign of an English royal dynasty. The common law, the principle of stare decisis, and the parliamentary form of government all took hold under the Plantagenets. But their reign also included some of the bloodiest and most tumultuous chapters in the history of England, Wales, and Scotland. A century after the demise of the last Plantagenet king, William Shakespeare ensured the everlasting fame (and infamy) of the Plantagenet dynasty in plays such as Richard II, Henry IV, Henry V, and Richard III.   

The real life story of the Plantagenets puts Game of Thrones to shame. Episode One of the BBC documentary on the Plantagenets—The Devil’s Brood—is available here. Episode Two—An English Empire—is available here. And the final episode—The Death of Kings—is available here.

On a related note, two months ago on his In Our Time BBC radio program Melvyn Bragg did a quite interesting 40-minute segment on Is Shakespeare History? The Plantagenets. During the program Bragg interviewed the Shakespeare scholars Emma Smith, Gordon McMullan, and Katherine Lewis. You can find the audio clip here.

The Christmas Amnesty of 1868

Tuesday marked the 150th anniversary of President Andrew Johnson’s Christmas Amnesty of 1868. Acting under Article II of the Constitution (which empowers the president “to grant reprieves and pardons for offenses against the United States”), Johnson granted amnesty and a full pardon to all ex-Confederates. Here is the complete text of his Christmas Amnesty:  

A Proclamation

Whereas the President of the United States has heretofore set forth several proclamations offering amnesty and pardon to persons who had been or were concerned in the late rebellion against the lawful authority of the Government of the United States, which proclamations were severally issued on the 8th day of December, 1863, on the 26th day of March, 1864, on the 29th day of May, 1865, on the 7th day of September, 1867, and on the 4th day of July, in the present year; and

Whereas the authority of the Federal Government having been reestablished in all the States and Territories within the jurisdiction of the United States, it is believed that such prudential reservations and exceptions as at the dates of said several proclamations were deemed necessary and proper may now be wisely and justly relinquished, and that an universal amnesty and pardon for participation in said rebellion extended to all who have borne any part therein will tend to secure permanent peace, order, and prosperity throughout the land, and to renew and fully restore confidence and fraternal feeling among the whole people, and their respect for and attachment to the National Government, designed by its patriotic founders for the general good:

Now, therefore, be it known that I, Andrew Johnson President of the United States, by virtue of the power and authority in me vested by the Constitution and in the name of the sovereign people of the United States, do hereby proclaim and declare unconditionally and without reservation, to all and to every person who, directly or indirectly, participated in the late insurrection or rebellion a full pardon and amnesty for the offense of treason against the United States or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof.

In testimony whereof I have signed these presents with my hand and have caused the seal of the United States to be hereunto affixed.

Done at the city of Washington, the 25th day of December, A. D. 1868, and of the Independence of the United States of America the ninety-third.

ANDREW JOHNSON

The Christmas Amnesty is a historical precedent worth remembering as we await the completion of Special Counsel Robert Mueller’s Russia investigation. Two aspects of Johnson’s use of his pardon power stand out as particularly relevant.

Execute Against Japan

Today marks the 77th anniversary of Pearl Harbor, one of history’s most famous events. On the morning of December 7, 1941, the Imperial Japanese Navy launched a surprise attack on the American naval and air facilities at Pearl Harbor, Hawaii. Striking without warning (and before Tokyo’s issuance of a formal declaration of war), the Japanese military caught the U.S. Army and Navy completely off guard. In a span of less than two hours, Japanese fighters, bombers and submarines killed 2,400 American service members (as well as 49 civilians) and sank or severely damaged a dozen American warships, including the battleships Arizona, Utah, and Oklahoma.

Without question, the Pearl Harbor attack was one of the most brilliant and sophisticated tactical operations in military history. To achieve surprise, the Japanese Navy had secretly moved six carrier battle groups across 4,000 miles of ocean in heavy winter seas to reach the waters off Hawaii. During the long dangerous voyage across the Pacific, the Japanese warships never broke radio silence. After the attack the Japanese fleet left Hawaii almost unscathed, having lost only 100 pilots and submariners. Few navies in history could have pulled off such a skillful feat as the Pearl Harbor operation.   

But Pearl Harbor ultimately proved to be a strategic disaster of truly epic proportions for Japan. In the years that followed the attack the United States went on a war footing that vastly exceeded Japan’s ability to match. Even before the Japanese planes returned to their carriers, Tokyo’s unconditional surrender became America’s central war aim in the Pacific theater. As Professor Gerhard Weinberg observed in his classic work, A World At Arms: A Global History of World War II, the unprovoked nature of Japan’s attack on Pearl Harbor “was guaranteed to unite the American people for war until Japan surrendered. . . . The attainment of surprise guaranteed defeat, not victory, for Japan.”

When Japan finally surrendered in August 1945, it had sustained one of the most crushing defeats in the history of modern warfare. American firebombing (including two atomic bomb attacks) had destroyed most of Japan’s major cities, Japan’s military was shattered, and over 2 million Japanese were dead. The war also devastated Japan’s reputation with its neighbors as the brutal Japanese military occupation of China, Korea, Vietnam, and the Philippines created bitterness that lasted decades. For the rest of the twentieth century, the United States stood as the dominant power in the Pacific.

Pearl Harbor’s enormous historical significance is self-evident. But there is a remarkable aspect of the Pearl Harbor story that even many students of World War II do not know. A few hours after the Pearl Harbor attack, the United States Navy issued an extraordinary order to its surface and submarine fleets, one that violated international law and probably the Constitution of the United States as well.

Manliness

I want to thank Dean Dan Filler for inviting me to blog.

One of my chief scholarly interests is manliness and its relation to law and politics. While the topic may seem exotic to some, I think it is in fact quite the opposite: it is manifest in some of our most pressing public issues. We have a President, for example, who has explicitly invoked the tropes of manliness to justify his authority (and belittle others). So too the policy debates about the Second Amendment are often prompted by mass shootings committed by disturbed males who feel that a resort to gun violence is necessary to redeem their emasculated status.

But manliness is a barbed idea. It can serve diverse constituents. Manliness as a normative theory has arguably been used to underwrite the First Amendment right of speech, the need for civility as a political virtue, and the Civil Rights Movement of the 1960s.

In the next couple of weeks I plan to blog about manliness in the context of law and politics, beginning with my recent book about Justice Oliver Wendell Holmes.

 

Eleanor Roosevelt’s Tax Returns

Eleanor Roosevelt probably would have disagreed with Donald Trump on many topics. But a new article in Modern American History highlights one issue Roosevelt saw eye-to-eye with President Trump: the non-disclosure of presidential tax returns. 

In “Eleanor Roosevelt’s Tax Returns,” Carolyn Jones provides a short but illuminating history of how tax returns became confidential documents, shielded from public access. As Professor Jones explains in her article, tax privacy was not always the order of the day in Washington. When Congress adopted an income tax during the Civil War to pay for the Union war effort, the government allowed public inspection of all tax returns. Six decades later, in the case of United States v. Dickey, the Supreme Court held that no congressional statute or constitutional provision barred newspapers from publishing the details of individual taxpayers’ federal income tax returns.

In response to the Dickey decision, the Coolidge Administration made tax returns confidential. But during the Great Depression allegations of widespread tax evasion by the rich became a highly partisan issue. As Jones points out, when President Franklin Roosevelt called for disclosing the names of “very wealthy individuals” who used loopholes to avoid paying taxes, the IRS Commissioner publicly identified 67 wealthy people (mostly Republicans) who allegedly had not paid “their full share of taxes.”

Viewing the tax disclosures as a partisan attack as well as a blatant abuse of power, Congressional Republicans responded by demanding an investigation into the Roosevelt family’s finances. The intrusive nature of the investigation affected Eleanor Roosevelt as much as her husband. As Professor Jones notes, the First Lady made so much money from her product endorsements, speaking fees, and writing royalties that “her income sometimes exceeded her husband’s salary.” Although proud of her financial independence from her husband, Eleanor Roosevelt had little interest in revealing to the world the most private details of her personal finances, let alone those of her family. The controversy soon fizzled out, but the experience left Roosevelt with a deeply wary view of mandatory disclosure of government officials’ tax returns. 

During the 1952 election, the issue of presidential taxes returned to public prominence when Senator (and Republican vice presidential candidate) Richard Nixon challenged the Democratic presidential and vice presidential candidates to disclose their tax information. Eleanor Roosevelt, however, publicly disagreed with Nixon in a newspaper column. Although she understood the benefits of public disclosure, she nevertheless argued that asking “government officials to reveal their finances . . .  is a sign that we no longer believe people should be proved guilty before they are accused of wrongdoing.” The controversy over the Roosevelt family finances, Jones concludes, “helps explain [Eleanor] Roosevelt’s reticence in 1952 to Nixon’s call for politicians to disclose their filings.”

Professor Jones’s excellent article is timely, engaging, and concise (it is only 4 pages long). It is available here at the Cambridge University Press website. In addition, Legal History Blog has a link to the other articles in the new issue of Modern American History.

The Schoolhouse Gate

Last fall I heard Justin Driver give a superb lecture at Drake Law School on free speech in the public schools. The lecture was based on a book he was writing about constitutional law and public education. The book is now out and it is called "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind." It was published last month by Pantheon Books.

Yesterday SCOTUSblog posted an interview with Professor Driver about his new book. As he explains in the interview, the book "argues that the public school has served as the single most significant site of constitutional interpretation within the nation’s history." He contends that "when we disagree over what the Constitution means in public schools, we engage in an argument that is fundamentally about what sort of nation we want the United States to be."

One part of the interview that particularly caught my eye is Driver's revisionist account of Brown v. Board of Education. Here is an excerpt from the interview:

"Many observers have asserted that the Supreme Court’s unanimity was essential in Brown because a dissenting opinion would have stoked southern opposition. As subsequent events would demonstrate, however, southerners did not need any encouragement from the Supreme Court to resist Brown in a maximal form. In 1956, for example, 19 U.S. senators and approximately 80 congressmen joined forces to issue a document called the Southern Manifesto denouncing Brown as wrongly decided. Anti-Brown forces eventually coalesced around a rallying cry holding that they would accept racial integration exactly 'never!' Importantly, it seems quite plausible that Chief Justice Earl Warren, had he not felt compelled to placate Justice Stanley Reed — the last holdout for Jim Crow — could have written a more muscular opinion in Brown. Whatever modest gain Warren realized from Brown’s unanimity in the form of squelched dissent, in other words, could have been counterbalanced — and perhaps even outweighed — by the attendant loss of watering down the opinion’s condemnation of Jim Crow. Thus, rather than continuing to champion Warren’s behind-the-scenes maneuvering in Brown uncritically, one might more appropriately view those actions as well-intentioned but ultimately misguided." 

I have always admired Chief Justice Warren's skill in securing a unanimous opinion in Brown, but Driver's counterargument is compelling. His book looks absolutely great.  

Here is a link to the full SCOTUSblog interview with Professor Driver. And here is a link to the book's Amazon page.