The Faculty Lounge

UPDATE: The Breaching of Macomb’s Dam(n) Bridge

One writing truth that I learned (relearned?) writing Naming Gotham: The Villains, Rogues, and Heroes Behind New York Place Names is that book publishers are serious about word limits. Unlike a law review article where the word limit is more of a suggestion, my publisher gave me a hard upper limit for words in the book. I ran out of space long before I ran out of words. So, I have taken to blogging because there are more stories I want to tell. This is one of them. You can read about the book project here, and the first installment of this saga here. 

When we last met, Robert Macomb had constructed his dam(n) bridge across the Harlem River . The New York legislature had granted him the right to build the dam so long as it did not impede navigation. Legislation authorizing the dam explicilty required Macomb to build and maintain a lock to ensure that the river remained navigable. 

Macomb ignored this injunction, much to the fury of the growing population of Westchester that was now cut off from New York harbor.  After Macomb’s dam was completed, boats seeking to traverse this portion of the river had to unload above the dam, haul the boat over the bridge, and then reload the boat. This was hard, dangerous work that made navigation well nigh impossible.

Enter Lewis Gouverneur Morris, scion of the wealthy Morris family that owned parts of Westchester and much of the Bronx, including the areas presently known as Port Morris and Mott Haven.  The family was extremely politically powerful. Lewis’s grandfather was Chief Judge of the New York Supreme Court, and his great-uncle Gouverneur Morris not only signed the Declaration of Independence, but also wrote the preamble to the Constitution.

Westchester landowners  drafted a Remonstrance to the State Legislature. This Remonstrance, signed by more than 100 people, averred that before the construction of Macomb’s dam the Harlem River was navigated by schooners, sloops and other vessels. Although the main thrust of this Remonstrance dealt with the High Bridge and the Croton aqueduct, it also documented and complained of the navigation problems caused by Macomb’s dam. They appointed Lewis G. Morris as their agent for addressing this problem.  Lewis brought the Remonstrance to Albany, but also took on a less orthodox role in solving the navigational challenges.

Characterizing Macomb’s dam as a public nuisance, these leading citizens of Westchester decided to take matters into their own hands. Declaring that “any person injured or incommoded by said nuisance [could] abate the same,” they deputized Lewis G. Morris and vested him with authority to remove enough of it to allow navigation. They not only agreed to pay the costs of this direct action, promised to bail out anyone who was arrested, but also advised “We recommend the employment of a strong force of men and scows, that the work may be promptly effected, and to the end of obviating opposition.” 

On August 31st 1838, Morris and his entourage boarded the Schooner Superior and sailed up to Macomb's dam. They demanded passage through the dam to deliver a load of bricks upstream.  The Bridge keeper (remember there was an illegal toll bridge atop the dam) stated the obvious—that he could not let them through because the bridge had no lock and thus there was no way for a schooner to pass.  

On September 8^th, Morris and entourage again returned in a sailboat and demanded passage through Macomb’s dam. Again they were denied, there being no lock that could afford them passage.

Finally, on the evening of September 14^th, Morris and his entourage returned once more, this time on Nonarpiel, a vessel hired to transport coal from New Jersey to Morris’s residence upriver from the dam. Morris again demanded passage through the dam.  Upon being denied passage, Morris and his men began “quietly and in a peaceable manner commence taking down part of said dam and bridge, and did take up sufficient thereof to let said vessel pass through.”

Under Morris’s direction, 63 men spent much of the next week dismantling Macomb’s dam, ultimately removing roughly three spans of the dam and demolishing one of the abutments. Through her trustee, Mary Pell Cornell Macomb sued (Robert had already died) alleging a trespass. After a trial on the merits, the judge instructed that “if the jury should find [the dam] was a public nuisance then the defendant had a right to abate it by his own act” and “that in doing so, the defendant had a right to remove so much of the dam as was necessary to make a safe and convenient passage for all vessels.”  The jury ruled for Morris on all counts. The appeals court not only affirmed but also awarded Morris roughly $400--the cost of dismantling the dam.

In 1854, the City of New York repossessed Macomb’s dam, and four years later, the New York legislature finally directed New York City and Westchester County to remove the dam and build a new toll-free bridge. To facilitate navigation, this bridge was built as a swing bridge. The bridge was landmarked in 1992. 

Check out Naming Gotham to learn more about the gossipy backstory behind New York City infrastructure.

Bonus: The multiple civil proceedings that emerged from this incident were among the earliest affirmations of the federally guaranteed freedom of navigation and an early definition of waters of the United States. These cases also framed a robust theory of public nuisance that might be of interest to environmental lawyers today.

Added Bonus for Property Professors: Robert and Mary Macomb were extremely litigious.  One of their many cases, Baker v. Lorillard, provides a remarkable tour of estates in land, including how to interpret ambiguous grants after the legislative elimination of fee tails, the consequences of partitioning estates encumbered by life estates, and the various ways vested remainders might be divested by executory interests.

Bi+ Visibility Day and Marjorie Rowland

In honor of today being Celebrate Bisexuality Day (aka Bi+ Visibility Day or Bi Visibility Day), I thought I would post about bisexual rights pioneer Marjorie Rowland, who sued way back in 1975 when she was suspended and then faced nonrenewal of of her contract as a school guidance counselor because she had acknoweledged her bisexuality to a school secretary. Although she first had to appeal dismissal of her case to the Sixth Circuit, she ultimately won a jury verdict based on her equal protection and First Amendment claims, only to have it cursorily reversed by the Sixth Circuit. The Supreme Court denied review, over a powerful dissent by Justice Brennan, and Ms. Rowland, who had enrolled in and graduated from law school during the pendency of the case, was left to deal with the considerable fall-out from the case, including an apparently retaliatory charge of welfare fraud and an initial denial of her moral character application to the Arizona Bar. Ms. Rowland, however, persevered and ultimately had a successful family law and bankruptcy practice in Tucson for decades. 

My article about the case, forthcoming in Harvard Journal of Law and Gender, brings to light little-known facts gleaned from the trial transcript, explores the flaws in the Sixth Circuit opinion, and also argues that part of the reason that Ms. Rowland's case, Rowland v. Mad River Local School District, did not receive the attention it deserved in scholarship and case law was likely bisexual erasure. The article looks at areas where bisexual erasure continues to be prevalent, including the relatively scant coverage of bisexuality in Law & Sexuality textbooks, and briefly touches on how far we have come--and in some areas, how little progress has been made--since Ms. Rowland brought her case. Remarkably (or perhaps not at all remarkably, given the times we're in), a very similar case brought by a Kentucky choral teacher who was fired based on disclosing his bisexuality on his Instagram account is pending today.  

Happy Celebrate Bisexuality Day!

Richard B. Bernstein (1956-2023)

Richard B. Bernstein has passed away. It was my pleasure working with Bernstein. He was a most important and most humble person. Joanne Freeman and Annette Gordon-Reed have excellent biographies today.

Over at legal history blog R.B. Bernstein has funeral service this Friday at 12-1 p.m.

At Williamjames Hoffer is posting R.B. Bernstein's obit notice H-Law.

Robert Macomb—Lawyer for the Ages?

In writing Naming Gotham: The Villains, Rogues, and Heroes Behind New York Place Names I discovered that ran out of space long before I ran out of words. So, I have taken to blogging because there are more stories I want to tell. This is one of them. You can read about the book project here, and the next installment of this saga here.

If you drive up FDR Drive on your way to the George Washington Bridge, you will pass Macombs Dam Bridge (at one time there was an apostrophe--Macomb's Dam Bridge because it belonged to Robert Macomb--but the apostrophe was lost to history.) The current iteration of Macombs Dam Bridge is a swing bridge, built in 1896.  At the time, it was the worlds heaviest movable object. It is also very beautiful (photo of Edward Hopper 1935 photo courtesy of Wikimedia Commons)

The story behind the bridge, like so much our our named New York infrastructure, is a window into history.  Few New Yorkers have even heard of the Macomb family, or the outsized role they played in New York and United States history.  While Naming Gotham goes into detail about Alexander Macomb Sr.'s shady financial dealings, and Alexander Macomb Jr.'s military exploits, today I want to talk about the youngest male member of the Macomb clan and his own special brand of sleaze.  Maybe a better name would have been Macombs Damn Bridge

Meet Robert Macomb: Grifter Extraordinaire  

Born in 1783, Robert Macomb was the youngest son of Alexander Macomb Sr., a Revolutionary war-profiter who made a fortune  supplying the British forces in Ohio with food and arms. After the war, Alexander moved his family to New York City where he turned his talents for grift to land speculation. For a brief period Alexander owned most of the Adirondacks, and all of the Thousand Lakes, until his scheme with William Duer to corner the US debt market backfired, causing the Panic of 1792 and landing him in debtors prison.

Despite his father's drama, Robert grew up in the lap of post-revolution luxury. In fact, the Macomb family house became the first official residence for President George Washington. The family enslaved at least 12 Black people, making them the third-largest slaveholders in New York City.

Robert studied law at Columbia. Family political connections got him appointed clerk of the New York criminal court in 1811.
This involved first ousting the sitting clerk, John W. Wyman a move the New York Morning Post called “an instance of injustice and oppression scarcely paralleled in the annals of our state affairs.” (Robert Macomb painting by Edward Green Malbone, CCO, donated to Wikimedia Commons by the Metropolitan Museum of Art)

He didn’t last long in the job.  

In 1817, the New York Evening Post published multiple articles accusing Robert of malfeasance, alleging that Robert was “prostituting” his office as clerk of court “to the vilest, meanest, most mercenary and even dishonest purposes.” Specifically, the paper alleged that Robert sold pardons to convicted criminals, and pocketed fines and bail money paid into the court. Robert brought a libel action and lost spectacularly—the paper’s editor easily persuading a jury to rule in his favor on the ground that that truth was an absolute defense to libel. (People v. William Coleman). Robert was forced to resign his post. Attempts to get him to pay back the money floundered, with the committee formed to recoup funds characterizing Robert as "shuffling and evasive."

 

Forced out of public service, Macomb turned his hand to industrial and land development. Most notably, he obtained legislative approval to build a dam across the Harlem River to power a grist mill his father had build and then lost in bankruptcy. Robert bought it at the Tontine House bankruptcy sale. Article II of the legislative act approving the dam expressly required "[t]hat said dam shall be made and built as to admit the passage of boats and vessels accustomed to navigating the same, by means of a good and sufficient lock, gate, or apron or other contrivance and the said Robert Macomb, his heirs and assigns, at his or their own expense, shall keep and provide a suitable person to attend the same, so that no unnecessary delay may happen to those who may have occasion to pass the same." Article III provided a fine of $5 per instance for every time someone incurred "unnecessary delay." And, he was denied permission to build a toll bridge atop the dam. Robert was never one to let a legal technicality (in this case an express limitation in his legislative deed) stop him from making a buck. So, he built Macombs Dam Bridge without a lock, low enough to block navigation, and then built a toll bridge anyway. 

 After all, when your father’s “mad speculation” caused the Panic of 1792, and you are continually overshadowed by your older brother’s military exploits that helped save the Republic, AND you’ve just been forced out of your cushy government job, why not build an illegal dam and then add an illegal toll bridge on top.

Ah New York  . . .  Lawyers deciding they are above the law.  Real estate developers doing whatever they please, regardless of the public’s interest. Well-connected grifters leveraging old family ties into sinecures and then abusing their authority to line their pockets.  Plus ça change, plus c'est la même chose.  

Next Installment—The Breaching of  Macombs Dam Bridge—Enter Lewis Gouverneur Morris.

If you enjoy this kind of gossipy history, be sure to check out Naming Gotham!

Introducing Naming Gotham

Thank you Dan and Bridget for inviting me to step into the Faculty Lounge.  I am going to be blogging about my new book Naming Gotham: The Villains, Rogues, and Heroes Behind New York Place Names. One writing truth that I learned (relearned?) writing is that book publishers are serious about word limits. Unlike a law review article where the word limit is more of a suggestion, my publisher gave me a hard upper limit for words in the book. I ran out of space long before I ran out of words. So, I have taken to blogging because there are more stories I want to tell.

First let me introduce the project.  Then in subsequent blog posts, I will share some of the stories and details that I had to cut from the book because of space constraints.

About Naming Gotham

Each day, millions of people “take” the Major Deegan, the Hutchinson Expressway, the Outerbridge Crossing, and the Holland Tunnel. Few travelers remember that, before these names became an urban shorthand for congestion, they were actual people. This quirky New York City history uses the naming of New York City’s roads, bridges, and civic institutions as a unique window into urban social structure and the City’s ever-changing inhabitants. The lives of Revolutionary War heroes, robber barons and Tammany Hall politicos introduce readers to the outsized roles that power politics, corruption, and the slave economy played and continue to play in New York City.

The names in this book tell only a small sliver of the City’s story. To date, New York City has chosen to commemorate mostly white men. In a city as diverse as New York, that fact is telling. It reflects the historical balance of power in the City—both in terms of who had the power to name things and who got to define what counts as history. As I was researching and writing this book, that began to change. Most significantly, the Shirley Chisholm State Park, named after the first Black woman elected to Congress, opened in 2019. This shift in who the City memorializes reflects the changing narrative that New Yorkers tell themselves about their city. It remains to be seen how this changing story will translate into the policies the City adopts for its schools, its roads, and its neighborhoods.

Here is the short (very funny) book trailer that artist and writer Jeff LaGreca made for Naming Gotham. 

 

poem on Pierson v. Post

My poem on Pierson v. Post, written from the fox's perspective, is out in Hastings Journal on Gender & the Law. The full cite is 34 Hastings Women's L.J. 113 (2023), and the poem is available here:  Download Poem

American Society Legal History Program, November 10-12, 2022

American Society Legal History program running from November 10 to November 12, 2022.  Have fun!

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.