Archive for the ‘History of Law’ Category

Announcement for the Paul Murphy Prize

posted by Danielle Citron

The American Society for Legal History announces the Paul Murphy Prize to support the completion of a book on the history of civil liberties that addresses any topic or any time in American history. The award will be given out two times only, in 2012 and 2013. Recipients will receive $5000 to support their work. Nominees at all levels of seniority will be considered, however the award is not for the completion of a dissertation.

The award honors Paul L. Murphy (1923-1997), who spent much of his career at the University of Minnesota where he rose to the rank of Regent’s Professor of History and American Studies. At the time of his death, he was in the second year of his term as president of the ASLH. During his tenure at Minnesota he became one of the nation’s leading constitutional historians and a mentor to generations of undergraduate and graduate students. Among his most important books were: The Meaning of Freedom of Speech: First Amendment Freedoms from Wilson to FDR (1972); World War I and the Origin of Civil Liberties in the United States (1979); Historic Background of the Bill of Rights, Vol. 1 (1990); and The Shaping of the First Amendment: 1791 to the Present (1991). In addition, civil liberties played a fundamental role in the argument he developed in what was likely his most influential book, The Constitution in Crisis Times 1918-1969 (The New American Nation Series, 1972). Murphy’s commitment to civil liberties and his passion for the subject was evident in his deeds as well as his words. He was an ardent and committed member of the American Civil Liberties Union throughout his life. For additional information on Murphy please see the tribute to him in the Law and History Review, 16 (Spring 1998), ix-xi.

To be considered for this award, authors or nominators should send a book proposal with chapter descriptions, a discussion of the book’s contributions, and a time-line for completion; a sample chapter; and a c.v. to committee chair Mary L. Dudziak (mdudziak@law.usc.edu). Submissions via e-mail are preferred, and attachments can be in Word or PDF. Please put “Murphy Prize” in the subject line. If you must submit by hardcopy, please send four copies of these materials to arrive by the deadline to this address: Professor Mary L. Dudziak, USC Gould School of Law, 699 Exposition Blvd, Los Angeles, CA 90089. The deadline for receipt of proposals for this year’s award is June 30, 2012.

Members of the Murphy Prize Committee are:
Mary L. Dudziak, Chair, University of Southern California
Robert Kaczorowski, Fordham University
Serena Mayeri, University of Pennsylvania
David M. Rabban, University of Texas

 

  February 3, 2012 at 10:12 am   Posted in: History of Law   Print This Post   One Comment

Some Words of Advice for Law Students, from 1811

posted by Kyle Graham

As the year draws to a close, it might be worthwhile to review the following advice, provided to American law students (clerks, really) precisely two centuries ago.  These words of wisdom come from William Wright’s Advice on the Study of the Law, as published by Baltimore’s Edward J. Coale  with “additional notes for the American student” back in 1811.  (One can view the complete text here, on Google Books.)

• The student should commence with a firm resolution to become one of the most eminent attornies [sic] of the age : and though the difficulties which he will at first meet with may be great, he should not despond; because despondency will produce negligence. Let him persevere, and he will succeed.

• Genius is more equally distributed among mankind than is generally allowed. . . . If all men would accustom themselves to reflection, few would be ignorant; and their want of reflection proceeds from their own folly and love of leisure, and not from the insufficiency of their natural endowments.

• Habits of attention and application, properly directed, produce what is commonly called genius.

• The student should make himself most intimately acquainted with the practice which is likely to be the most useful.

• Mankind will undoubtedly form their opinion of the morals and attainments of the young lawyer from those of his companions. . . . If he selects for his confidential friends the libertine, the dishonourable, the malevolent, the trifler, or the uneducated, among such he will himself be classed.

• The companions of a student should be few; if they are numerous, he will probably be induced to sacrifice more time to friendship and pleasure than is consistent with his professional duties, and his hopes of honourable distinction.

• Politeness, says Lord Chatham, is benevolence in trifles. This then is all I require of the student.

• Young men should carefully guard themselves against forming any attachment, even upon honourable principles, till years shall have matured their judgment, and a proper course of study supplied them with knowledge sufficient to enter on the world and to transact their professional business with accuracy. Attachments formed too early in life are commonly of a romantic nature, and tend to dissipate thought and unhinge the mind, and seldom terminate so happily as lively imaginations are willing to expect.

• An attorney should commence his professional labours with the laudable resolution of preventing litigation, as much as possible; for petty suits are always vexatious, and seldom productive of advantage either to the litigant parties or to society.

• When consulted professionally, a young attorney should not, if he can avoid it, give his opinion hastily; but consider and re-consider.

  December 27, 2011 at 2:02 pm   Posted in: History of Law, Humor, Teaching, Uncategorized   Print This Post   One Comment

The Phone Booths in Katz v. United States?

posted by Kyle Graham

I’ve chipped away at the K2-esque stack of Crim Pro and Torts exams that sit on my desk. Plus, if I grade another examination right now, my margin comments will consist solely of “all work and no play makes Jack a dull boy.” So, notwithstanding my earlier prediction that grading would prevent further posts, I am allowing myself this entry as a reward and respite.

Here, I want to share an (arguably) interesting video with this blog’s readers.  As background, my Criminal Procedure course reader begins with the seminal Katz v. United States case.   The Katz case involved the government’s warrantless eavesdropping on an occupant of a phone booth situated along Sunset Boulevard in Hollywood.  As those of you who teach Crim Pro, or who took this course in law school already know, Katz is the wellspring of the “reasonable expectation of privacy” standard that has become the touchstone for Fourth Amendment analysis.

I use PowerPoints in my classes, and I’ve been searching fruitlessly for good visuals for the Katz v. United States case for some time. Stock photos of 1950s college-age kids stuffing themselves into telephone booths, movie posters for the Colin Farrell vehicle “Phone Booth,” and my simple line drawings don’t really convey the scene quite as well as I would like.

Toward this purpose, while procrastinating from grading examinations today, I came across a website that hosts several scrolling videos of the Sunset Strip in Los Angeles,  circa the mid-1960s.  I thought that one of these videos might show the fateful bank of phone booths, and in any event, continuing my search for same would provide an extremely valid excuse not to grade more exams.

According to the Ninth Circuit’s opinion below in Katz, the bank of three phone booths that Katz used was on the 8200 block of Sunset Boulevard.  And, sure enough, if one scrolls down to the fourth video on the page—the one that’s 2:48 in length—about 49 seconds in, one can see a bank of three phone booths on the 8200 block. (How do I know which block this is?  The Jay Ward studios—home of Bullwinkle the Moose, and featuring a conspicuous Bullwinkle statue in front—were located at 8217 Sunset Boulevard, quite close to the phone booths.)

I don’t know for certain that these are the phone booths involved in Katz (the caption for the video indicates it was recorded in 1967, whereas the facts in Katz took place in 1965; plus, I don’t know whether there was another set of phone booths on the [unfilmed] north side of the street), but they might well be.  Just thought I’d pass it along; even if these aren’t the same phone booths, the video conveys a nice sense of time and place for the case.

  December 20, 2011 at 8:30 pm   Posted in: Criminal Procedure, History of Law, Teaching   Print This Post   2 Comments

Back for One (or Two) Last Things—An Offer and a Request

posted by Kyle Graham

D’oh. I said that my preceding post would be the last for my guest-blogging stint, but I forgot about two things:

1. Criminal Procedure DVD Offer

First, this spring I hope to get around to an oft-delayed project of mine. I teach Criminal Procedure, and in that class I find it useful to show my students video clips of traffic stops, arrests, and other scenes to help illustrate some of the concepts we cover, and to press students about whether the officers’ actions, as shown, were appropriate under the circumstances.

I mostly rely on television shows (both scripted and reality) and YouTube clips for this purpose. These snippets can be entertaining. (My favorite online clip in this genre can be found at http://www.youtube.com/watch?v=lmnUx_wNqRE. I don’t use this clip, however, because I haven’t quite figured out how to tee it up for students, such that it has significant pedagogical value. Perhaps I should introduce it as the world’s worst search incident to arrest?) Yet the available selection leaves some gaps in my repertoire.

So, I plan on doing some filming of my own this year, to put together a more robust set of video clips to show to students. If any of you out there (1) teach Criminal Procedure and (2) would like a free copy of the DVD I hope to put together, please contact me via e-mail. I’ll put your name on a list and send you a copy once it’s done, which hopefully will occur sometime prior to the start of the fall semester.  (Emphasis here on “hopefully.”)

2. Criminal Procedure < 1965 Interview Subjects Wanted

Fifty years ago, Lawrence Ritter responded to the death of Ty Cobb by traveling around the country to collect oral histories from old-time baseball players before they, too, passed along. The resulting work, The Glory of Their Times, remains among my favorite books.

In the same vein, it recently struck me that we are now losing the last generation of criminal-law attorneys who practiced in the pre-Miranda, pre-exclusionary rule, pre-Gideon era. Someone who was 30 years old in 1960—the year before Mapp v. Ohio—is now 81 years of age. While we have a sense as to what the practice of criminal law was like back before the Rights Revolution of the 1960s, it nevertheless might be useful to speak with some of the remaining practitioners from that period to better understand the similarities and differences between that period, and ours. I’m aware of some oral history projects in a similar vein, but none that ask quite the questions I’d like to ask.

I already have started to identify these practitioners, but here, I ask for your help. If any of you know someone who used to practice criminal law back in the 1950s and early 1960s—be it a prosecutor or defense attorney (or judge)—who wouldn’t mind speaking with me, I would greatly appreciate it if you would e-mail me with their contact information. Better yet, if you are such a person yourself, please feel free to e-mail me directly.

In any event, happy holidays to you all.

  December 17, 2011 at 4:44 pm   Posted in: Criminal Law, Criminal Procedure, History of Law, Teaching   Print This Post   One Comment

Hammontree v. Jenner: The Rest of the Story

posted by Kyle Graham

I recently picked up 120 Torts and Criminal Procedure examinations, which I must grade before the holidays.  In a related story, this will be my last guest-blogger post on the site.  Thanks to Gerard, Frank, and my other hosts for their hospitality, and to the readers of this blog for their patience.  It’s been fun, at least for me.

I’ll wrap up with another Paul Harvey “here’s the rest of the story” narrative, which may be useful to those of you who teach Torts. (The rest of you will probably want to skip this one.)  This entry will discuss Hammontree v. Jenner, a 1971 California Court of Appeal decision.

The Hammontree court rejected the plaintiffs’ contention that strict liability, instead of negligence, should govern a tort suit stemming from a driver’s unanticipated seizure behind the wheel.  Unlike Summers v. Tice, which I discussed in a previous post, Hammontree has not cast a substantial precedential shadow. The appellate opinion is short, and gives little sign that the court considered the issue presented to be especially difficult.

The significance of the Hammontree decision derives from its leadoff spot in Franklin, Rabin & Green’s casebook Tort Law and Alternatives, which I use in my Torts class.  (I’ve spoken to both the defense attorney at trial in Hammontree and the defense attorney on appeal; both were quite surprised that the case found its way into a textbook.)  The authors leverage the case in a variety of ways, using it to introduce the distinction between strict liability and negligence, along with themes such as legal ethics, the mechanics of a tort case, and the nature of precedent.

Last year, I went down to Los Angeles court archives and dug up copies of the original court filings in Hammontree for the use of my students, and others.   If anyone is interested in these documents (I find it quite helpful to show novice one-L students what a complaint, answer, motion for summary judgment, etc., look like, which goes a long way toward demystifying these documents), I’ve given them to Christopher Robinette over at the TortsProf blog, who kindly has posted them here.

The documents didn’t contain any big surprises, but they did harbor a few facts that may be interesting and useful to those of you who teach the case.  Now that I’ve scared off (or bored to death) 99 percent of this blog’s readers, I’ll explain to the hardy few who remain, after the jump.

Read the rest of this post »

  December 16, 2011 at 12:07 am   Posted in: History of Law, Teaching, Tort Law   Print This Post   5 Comments

On Elevators, Frightened Horses, and Disappearing Types of Tort Claims

posted by Kyle Graham

The other day, a woman was killed in a horrific elevator accident in New York City.  

Happily, this is a rare occurrence, though one that’s well-represented in Torts casebooks.  Over at Point of Law, Ted Frank has blogged before about the dwindling number of accidents that involve elevators.  In his post, Ted cites to a 1926 New York Times newspaper article, which I subsequently dug up, that relates 87 deaths connected to elevators and elevator shafts in 1925—just in the city of New York!  Somewhat comfortingly, however, only 36 of these people were crushed by elevators.  Forty-seven fell into elevator shafts (which is still somewhat traumatic to me, especially after I watched this scene as an impressionable youth), three were killed when elevators fell, and one “fell through a dumbwaiter” (eep).

I don’t know how many of these elevator-related accidents led to tort suits.  A quick online search, however, suggests that these cases were once pretty common.  These suits appear to have percolated in the 1870s and 1880s, and developed into a well-recognized type of case by the 1890s or the early 1900s, at the latest.

This development paralleled the construction of the first wave of high-rise structures in American cities (the first modern “skyscraper,” the Home Insurance Building in Chicago, was built in 1884).   I don’t know if  there’s a causal connection between the proliferation of high-rises and the development of the elevator-suit case type (after all, any multistory building could claim an elevator, and lots of early cases involved apartment buildings and department stores that clearly were not skyscrapers), but it bears mentioning that Illinois, home of many early skyscrapers, produced a large number of appellate decisions involving elevators during this time period; perhaps appellate courts with discretionary jurisdiction in that state decided that these cases were worth hearing, if only because the construction of more high-rise buildings would mean more elevators, and a greater need for appellate precedent to guide the cases that would result from accidents involving these devices.

I’ll go into a little more detail about the disappearance of tort subspecies like the falling-elevator cases, after the jump.

Read the rest of this post »

  December 15, 2011 at 2:16 pm   Posted in: Current Events, History of Law, Tort Law   Print This Post   2 Comments

A Century and a Quarter of Law School Examinations

posted by Kyle Graham

Earlier this year, Harvard Law School posted examinations given at the institution between 1871 and 1995. I spent a little time the other day skimming through them, concentrating on examinations given in Torts and Constitutional Law courses.

With Torts, as with other classes, the most obvious change involved the gradual lengthening of exam questions. Gone are the days when a professor could ask, “What is an assault? How does it differ from a battery?,” questions posed on this 1871 Torts exam. But more than the questions have changed; one also can detect many shifts in the substantive law by reviewing the tests.

For example, old Torts exams concentrated upon the intentional torts. Of the 14 questions on the 1871 examination, four involved trespass; two, defamation; and there were also questions on nuisance, conversion, assault and battery, false imprisonment, fraud, and malicious prosecution. Modern tests, as one would expect, are much more concerned with the nuances of negligence doctrine.

The exams also illustrate how a given issue may “move” from one area of law to another, as time passes and new fields emerge. Some questions in early Torts exams would today seem much more at home in a Criminal Procedure or Antitrust final. (Consider, for instance, the 1873-1874 Torts question, “When can an officer arrest without a warrant, and when can a private person arrest without a warrant?”)

Trends aside, some of the most interesting questions in old exams were wholly topical at the time they were written. Professor James Thayer’s Constitutional Law examinations, in particular, skewed toward current events. Take, for example, this question, from an examination given during the 1881–82 academic year: “Could Guiteau have waived a jury? Would it make any difference if we suppose a statute purporting to authorize this? Why?” Guiteau, of course, was the (likely deranged) assassin of President James Garfield.

Or this, from Thayer’s 1896–97 examination (with my apologies for the incorporated language, which was, of course, a product of the time): “The State of X forbids the carrying of negroes or other colored persons and whites as passengers in the same car on any railroad in the State. In returning from a “Parliament of Religions” at Chicago, a Hindoo, a Moor, an Ethiopian and Mr. Booker Washington had taken passage from Chicago on a through train, making no separation of passengers, to a point requiring them to pass through State X. On reaching the line of that State, these travelers were all required to shift into a car for negroes. They refuse to go and were ejected from the train. In an action for assault against the conductor the question is raised of the constitutionality of the State law. How should the question be decided? Why?”

Sound somewhat familiar?  Personally, I find this question interesting mostly because Thayer tees up the issue by way of an assault action. But then, I teach Torts.

  December 6, 2011 at 7:44 pm   Posted in: History of Law   Print This Post   5 Comments

Law Professors, Petitions and Kristallnacht

posted by Kyle Graham

Not long ago, I was asked to sign a petition, circulating among law professors, that condemns the recent pepper-spraying of protesters at the University of California-Davis. This invitation rekindled my interest in the origins of these petitions.

Law professors qua law professors have become engaged in topical public controversies since the early 1900s. Some law professors spoke out about the Sacco-Vanzetti trial, and many professors took well-publicized positions on Franklin Roosevelt’s court-packing plan. I am unfamiliar with any widely distributed petition as to either event, however. (Although the AALS did initiate, only to abandon, a poll of law faculties designed to gauge their support or opposition to FDR’s plan.)

The first petition I have found that specifically requested the support of American law faculties circulated almost exactly 73 years ago, in early December 1938. This petition was prepared and distributed by telegram shortly after the Kristallnacht pogroms, and read as follows:

Faculty of Law [Institution, Location]

The Faculty of Law of the University of Amsterdam invites you kindly to inform them by telegram before December ten whether your Faculty of Law would be willing to second the following resolution. The invitation being wired today to all Faculties of Law in the British Empire, United States of America, France, Netherlands, Belgium, Switzerland, Finland, Denmark, Sweden, Norway, Iceland. The Faculties of Law of the Universities mentioned below noting with sorrow and dismay that in some countries innumerable people are being persecuted and tormented on account of their faith, race or political convictions and that particularly in the so called Concentration Camps innocent people are without legal procedure subjected to inhuman treatment considering that the basic principles of justice are thus insufferably violated voice their protest against this violation in view of their duty to uphold the principles of justice and the rights of man appeal to the conscience of mankind to support them in this protest and decide to publish this resolution and to communicate it to their respective governments.

The telegram, which on its face requested the support of each contacted institution (as opposed to the endorsement of individual professors) met with a range of responses. Some American law faculties (including those at Yale, the University of Chicago, the University of Michigan, the University of California-Berkeley, and the University of Colorado) signed on to the petition. At Harvard, it was agreed that individual professors could endorse the petition, if they so chose, but that no such backing would come from the general faculty, speaking as a whole and for the institution generally.

Today, it’s assumed that individual professors, as opposed to the institutions where they work, represent the proper signatories of a petition such at the one circulated by the University of Amsterdam law faculty. Were assumptions different, one presumes that there would be a lot fewer petitions in circulation. Plus faculty meetings would become much longer.

  December 2, 2011 at 4:09 pm   Posted in: Current Events, History of Law, Legal Ethics, Teaching   Print This Post   No Comments

Summers v. Tice: The Rest of the Story

posted by Kyle Graham

Most law students encounter Summers v. Tice in their introductory Torts courses. If you are (or were) among these students, you probably recall the basic facts: two negligent hunters, two simultaneous (or nearly so) shotgun discharges, one injured companion (shot in the right eye [necessitating its removal] and upper lip), only one culprit, but no way for the plaintiff to tell who shot him. Given these circumstances, the Summers court flipped the burden to each of the two defendants to exonerate himself, rather than allowing the plaintiff to founder on the shoals of but-for causation and the preponderance standard of proof.

The California Supreme Court’s opinion in Summers is pretty short, and I’ve long been curious about the defenses that the defendants (Harold Tice and Ernest Simonson) raised in this case. So I went to the California State Archives a while back and read through the case file.

An interesting story emerged. Whereas Simonson did not put on a very aggressive defense at trial, Tice did. Simonson conceded that both he and Tice had fired shots that could have caused Summers’ injury. Tice, by contrast, testified that Simonson, and Simonson alone, had shot the plaintiff, and that in fact Tice had not fired his gun for minutes prior to the fateful blast. To the same effect, Tice produced two deputy sheriffs as witnesses. These men testified that when they interviewed Simonson shortly after the accident, Simonson had told them that he was “the one” who had fired the shot (though on cross-examination, one of the deputies hedged a bit on this point).

Moreover, Tice argued that but for the plaintiff’s own negligence, he could have identified his assailant.  Specifically, Tice testified that he had been using No. 6 shot, whereas Simonson had been using No. 7½ shot. The two pellets are of slightly different size, and capable of distinction.  Summers himself testified that, although the shot had been given to him after its removal, he could not find it when he looked for the pellets at his home.  These facts, if accepted, place a very different spin on the case. One could no longer say that the defendants were in a better position than the plaintiff was to identify who fired the injurious shot, which of course was a key ingredient to the Summers decision.

Unfortunately for Tice, he apparently did not strike the trial judge (it was a bench trial) as a particularly persuasive witness. The judge made findings of fact that “the defendants, and each of them, were guilty of gross negligence in firing a gun in the general direction of the plaintiff”; that Tice’s testimony that he had not fired his gun for minutes prior to the accident was untrue; and that both defendants were using No. 7½ shot.

These findings of fact paved the way for the California Supreme Court’s decision above, following a short-lived reversal by the Court of Appeal.

The lesson, if there is one: Credibility matters.

  December 1, 2011 at 6:50 pm   Posted in: History of Law, Tort Law   Print This Post   No Comments

“Mad Men” Meets Prosser?

posted by Kyle Graham

I recently visited the American Law Institute archives, maintained by the University of Pennsylvania. There, I dove into the ALI records that relate to the development the Restatement (Second) of Torts. The documents I saw reveal a great deal about the creation of this treatise, and the atmosphere in which it was prepared.

For example, have you ever wondered what the scholars responsible for the Restatement drank, when they met back in the 1950s? Me neither, but I was nevertheless impressed by this beverage menu for a 1956 meeting of the Second Restatement’s advisory committee. If nothing else, it establishes that the committee had the good sense to repair to an establishment that offered both manhattans and martinis by the gallon.

But, one might think, the fact that these drinks were available at the meeting doesn’t mean that they were consumed there. Well, before taking a position on this question, it might be wise to review this schedule for the session, which indicates that drinks were to be served before lunch, at lunch, and at the close of each day’s discussions.

(Images courtesy the University of Pennsylvania University Archives and Records Center, American Law Institute Archives [Restatement (Second) Category; Restatement (Second) Torts Record Group, Box 25, File Folder 25-2])

  December 1, 2011 at 3:21 am   Posted in: History of Law, Tort Law   Print This Post   4 Comments

Leo, J. Edgar, and Ruth

posted by Jeffrey Kahn

Clint Eastwood’s biopic of J. Edgar Hoover opens nationwide tomorrow.  The New York Times’s Manohla Dargis liked it, and liked Leonardo DiCaprio in it.  So, if you can’t wait until the April release of Titanic 3D to get your Leo fix, this is your weekend.  Of course, J. Edgar is no Jack Dawson.  So you may need another reason to see the film.

Here’s one.  According to the Times review, the film begins with a voiceover by the title character: “Communism is not a political party — it is a disease.”  Strong words, but strongly felt by many back then (and a few even now).  And that’s a point worth remembering today as we continue to fight the sadly named “GWOT” — the Global War on Terror. 

Consider the year 1952, the midpoint of Hoover’s reign.  The Soviet Union had successfully tested three atomic bombs.  The Korean War was entering its third year, with hundreds of thousands of military and civilian casualties.  President Truman’s proclamation of a national emergency to fight the “world conquest by communist imperialism” led Congress to pass the Emergency Powers Continuation Act, extending the statutory duration of a wide variety of exceptional presidential powers.  Senator Joseph McCarthy had discovered communists infiltrating the United States Government.

Of course, Hoover wasn’t alone fighting communists.  Besides politicians like McCarthy, Hoover’s contemporary for much of his career was Ruth B. Shipley, the Chief of the State Department’s Passport Office.  (As it happens, Ruth’s older brother, A. Bruce Bielaski, preceded Hoover as the Director of the Bureau of Investigation, the precursor to the FBI.)  As I detail in a recent article in the Connecticut Law Review based on materials from the National Archives, Shipley controlled travel then with paper files and miles of file cabinets, but her method resonates with how we control travel today, using computerized terrorist watchlists.  Mrs. Shipley took second to no one in her zeal to keep communists and other subversives grounded.

In my forthcoming book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists (University of Michigan Press, forthcoming 2012), I argue that Mrs. Shipley’s approach was just an analogue version of the digital No Fly List used today.  The legal and policy premises are exactly the same: some people are too dangerous to travel, but for various reasons can’t be charged with a crime or otherwise detained.  (The No Fly List is just one of many watchlists; for example, there is one for maritime travel, too.)  It is up to the FBI’s Terrorist Screening Center to craft the lists that contain their names, just as Mrs. Shipley’s Passport Office red-flagged (ironically enough) the passport applications of Americans deemed too dangerous to travel.  Your chance of obtaining redress against this system for claims of mistake or misjudgment are as slim today as they were back then, also for many of the same reasons.

A recurring criticism of my argument is that this historical analogy doesn’t work.  I’ll revisit the issue later this month (I’m about to fly — FBI-permitting — to the University of Connecticut School of Law to present my case there).  But for now, as a simple test, ask yourself whether the words of one of the country’s most successful Supreme Court lawyers describe your (and Leo’s) world or the world of Ruth and J. Edgar:

“In short, several officials gather secretly behind closed doors, peruse secret intelligence reports and purport to arrive at a fair judgment affecting not only the citizen’s right to travel but also his reputation and possibly his livelihood and financial well-being.”

The year was 1952.  The source is Eugene Gressman, The Undue Process of Passports, 127 New Republic 13, 14 (Sept. 8, 1952).

  November 10, 2011 at 11:50 pm   Posted in: Civil Rights, History of Law, Uncategorized   Print This Post   8 Comments

The meaning of the Three-Fifths Clause

posted by Kaimipono D. Wenger

It’s very common to hear progressive writers criticize the racial inequality in the Constitution. One common such criticism invokes the Three-Fifths Clause — that is, writers criticize the Constitution as a document which unjustly labels slaves as merely “three-fifths of a person.” This sort of statement suggests that the Three-Fifths Clause created some sort of legally diminished status for Blacks, perhaps granting them only three-fifths of others’ rights or protections.

The idea that the Constitution is problematic because it labels slaves “three-fifths of a person” comes up frequently in news stories and online conversations. For instance, the New York Times discussion earlier this year about House members reading the Constitution noted that, “Certainly the Republican leadership is not trying to suggest that African-Americans still be counted as three-fifths of a person.”

This sort of framing, while common, reflects a fundamental misunderstanding of the Three-Fifths Clause and of what the Constitution does and does not say about race. Read the rest of this post »

  September 19, 2011 at 12:11 pm   Posted in: Constitutional Law, History of Law, Race   Print This Post   32 Comments

What is a treaty? Is that the right question?

posted by Matthew Lister

(Thanks to Danielle and the Co-Op crowed for letting me stick around a bit longer.)

I am interested in how we should think about treaties.  More specifically, I am interested in different ways we might think about treaties, and why different ways might be appropriate in different circumstances.  At one extreme we might think of treaties as establishing sacred duties, as being based on oaths with deep religious implications.  (Jeremy Waldon has a very interesting discussion of the history of this idea in his recent Charles E. Test lectures, “A Religious View of the Foundations of International Law”.)  I think that there’s a case to be made that supposed principle of international law (or of natural law, depending on one’s account), pacta sunt servanda, depends on this understanding, though I won’t try to make that case here.  (If so, this would be interesting in light of fact that Hans Kelsen at one point held, I believe, pacta sunt servanda to be the “basic norm” of international law, though he later abandoned this.) Read the rest of this post »

  September 8, 2011 at 6:02 am   Posted in: Contract Law & Beyond, History of Law, International & Comparative Law, Jurisprudence, Legal Theory, Trade, Uncategorized   Print This Post   4 Comments

John Bingham on the Promise of America

posted by Gerard Magliocca

I haven’t done a Bingham post lately (I’m up to 1850 in the biography, when he was a thirty-five year old lawyer still in private practice). One early clue about Bingham’s constitutional thinking is in a speech he gave at his alma mater, Franklin College, in 1851. For those of you who are Lincoln fans, it’s the equivalent of “Honest Abe’s” 1838 Lyceum Address. Anyway, here is a quote that I love from that speech:

“When the vital principle of our government, the equality of the human race, shall be fully realized, when every fetter within our borders shall be broken, where the holy Temple of Freedom, the foundations of which our fathers laid amidst prayers, and sacrifices, and battles and tears, shall be complete, lifting its head-stone of beauty above the towers of watch and war, then conscious of duty performed, and a noble mission fulfilled, we may call to the down-trodden and oppressed of all lands–come.”

 

  September 6, 2011 at 10:18 am   Posted in: History of Law   Print This Post   No Comments

Standards of Redemption-Not Hero Worship

posted by Alexander Tsesis

Redemption of founding principles, as I read Jack Balkin’s book, Constitutional Redemption, is not nostalgic naivete for some supposed heroic period of American history. Rather it is “fidelity to original semantic meaning” of the constitutional text that Professor Balkin has in mind by “originalism.” Accordingly, the significance of even intensely progressive clauses of the Constitution, like the Equal Protect Clause, is not predicated on their significance to the framers of the Fourteenth Amendment–for whom, as Balkin reminds us, women’s rights and anti-miscegenation laws were likely not within its framework–but on the combined assessment of individuals, social groups, politicians, and judges.

Professor Graber, in his post from August 2, 2011 at 19:43 is undoubtedly correct that constitutional storytelling can be manipulated to dress a narrow political point of view in the benighted raiments of antiquity. I nevertheless believe that accuracy in storytelling is important for portraying principles, trends, rulings, and contextual facts about America’s trajectory as a nation and Americans’ trajectory as a people.

Take as an example the question of Abraham Lincoln’s redemptive image, Father Abraham or Honest Abe as some called him. It is woefully true that this great figure he supported colonization into the early period of his presidency before abandoning the plan by January 1, 1863. But an immediatist abolitionist could not have been elected to the presidency in 1860. The general attitude even in the North was for ending the flow of slavery to the western territories but leaving southern states unrestrained in their slave regulations. To take one demonstrative example of the lack of popular support for abolitionism in the North: In December 1860, when Lincoln had already won the presidency, a mob tried to attack radical abolitionist Wendell Phillips after he gave a speech at the Negro Baptist church on Joy Street. Unable to get at its prey, the mob attacked black citizens and smashed house windows in the black section of the city. In such an atmosphere, neither Phillips nor William Lloyd Garrison–much less Susan B. Anthony or Charles Sumner–had a chance in the relatively liberal state of Massachusetts, where Lincoln received 62.9% of the state vote with Stephen Douglas coming a distant second with 20.3%. And if Douglas had won the presidency, there’s no guessing how much longer slavery would have been legal in the United States and how far northwest it might have spread. My point is that just as originalism’s claim to identifying the past through modern lenses is wrong so too is anachronizing contemporary standards to past events. The redemptive value of heros must be judge within the context of their own times.

One of Graber’s important points is that it’s one thing to praise a redemptive figure like Lincoln in general, and it’s easy to get support for such a view, but quite another thing when we begin to question how this moderate liberal would have addressed problems like redistribution or affirmative action: That is to say, the more detail the more nuance, and that’s generally true of history.

To be honest, I do not know for sure how Lincoln would have acted to the issue of affirmative action, although I am sure it would not have been in accordance with contemporary standards. What is certain is that he provided for the security of contraband during the Civil War and at the end of his life spoke about granting black veteran soldiers the right to vote. That was wholly inadequate to deal with all the facets of slavery and racism, but we should judge Lincoln according to his own day and age. The great orator and one time slave, Frederick Douglass, also rejected affirmative action in 1865, when he told the Massachusetts Anti-Slavery society to “Do nothing with us [blacks], for us, or by us as a particular class.” Douglass renounced that position after he saw the Souther recalcitrance with Reconstruction, its Black Codes, and Ku Kluxers. And we might imagine that had Lincoln lived to witness these injustices he too would have realized, just as did Douglass, that without the continued support of federal agencies like the Freedmen’s Bureau, blacks stood no chance at achieving real equality, neither in the South nor the North. It was, after all, Lincoln who signed the Freedmen’s Bureau Act into law.

As for redistribution, it is true that Lincoln did not support such an entitlement. That failure to advance justice on that score, however, should be attributed to Congress rather than Lincoln. Almost no one in the Republican or Democratic parties supported Representatives Thaddeus Stevens’s or George Julian’s land distribution plans. In retrospect, the country committed a grave wrong by preferring reunion to reparations, but Lincoln did not stand alone in such a tendency. Judged according to his own time, I believe Lincoln made positive advances in the direction of racial justice. That does not make him a messianic hero but a flawed one who made very positive strides to redeem the equality message of the Declaration of Independence.

The possibility of constitutional redemption is not anchored in Lincoln–nor other civil rights movers like Harry Truman or Lyndon Johnson–but in the principles and standards to which Balkin draws attention. The existence of neutral clauses in America’s founding documents, to which I drew attention earlier, provides the necessary opening for disempowered groups to demand the country to come to terms with its injustices, not on the basis of an abstract philosophy but a written creed. This is why I disagree with Rogers Smith’s ascriptive understanding of American history. While Smith is correct that “successful American political actors have not been pure liberals, democratic republicans, or ascriptive Americanists, but have instead combined politically potent elements of all three views.” I believe that he is mistaken that “American liberal democracy is not the ‘core’ meaning” of United States national purpose.

My reasoning is similar Balkin’s because I think he is correct that among other aspirational provisions to the Constitution, the Preamble “sets a purpose that has never been fully achieved but is our duty to achieve.” Aspirationalism, in Balkin’s sense, is seeing “the possibilities and the resources in the Constitution and in the constitutional tradition” and recognizing “that developing and realizing these possibilities and resources in history is perhaps the Constitution’s most basic command.” But, unlike Balkin, I think that the existence and normative value of these aspirations comes not merely from a social group’s ability to put them “on the table” of politics or into positive law, but the existence of innate human rights (e.g. the right to privacy, travel, and dignity) that the government lacks the power to infringe upon absent a compelling state reason.

The Reconstructed Constitution and the Declaration of Independence contain ideals for equality that a truly ascriptive system, like Nazi Germany, simply does not. There is nothing comparable to the overtly racist Nuremberg Laws in America’s founding documents. What we have, rather, is a country with far too many failures–in matters of race, gender, sexuality, religion, and immigration, to name just those that come to mind–but those failures were violations of the standards, which Balkin sees as essential for redemption, not manifestations of them. The differentiation between reality and ideals allowed workers’ parties, abolitionists, feminists, and disabilities rights groups to have faith in the founding documents even as they condemned the nation for failing to live up to them.

On another point Graber raises in his post about Lincoln’s appointees to the Supreme Court, I want to commend him for bringing Chief Justice Salmon Chase’s service to mind. I think it important to also speak about Justice Noah Swayne as a visionary hero of the original principles.

Lincoln nominated him to the Court in 1862. Swayne did in fact care deeply about the plight of blacks in America. He espoused abolitionism even before the Civil War, at one time he and his wife freed slaves they received by marriage. As an attorney, Swayne had even represented fugitive slaves. His political views were closely tied to anti-slavery sentiments. He had joined the Republican party in response to the 1850 controversy about the Fugitive Slave Law.

It was Swayne who wrote the earliest federal opinion on the Thirteenth Amendment as a designated district court justice. In United States v. Rhodes, he found Congress’s decision to pass the Civil Rights Act of 1866 was in accordance with “the spirit in which the [Thirteenth] amendment is to be interpreted.” Without the Act’s provision granting blacks the same right to testify as any white citizen “simple abolition, would have been a phantom of delusion.” Even more powerfully, his often overlooked dissent to the Slaughterhouse Cases, spoke of the ratification of the Reconstruction Amendment’s as “a new departure, and mark an important epoch in the constitutional history of the country” which were in accord with (or we may say redeemed) “the fundamental principles of the social compact.” After his retirement, Swayne commended Justice Harlan for his dissent in the Civil Rights Cases. “In my judgement,” Swayne wrote “it is one of the great, indeed one of the greatest, opinions of the Court does you infinite honor, is all that could be desired, and will make a profound and lasting impression upon the Country” With this ideology, I think we can fairly say that Swayne was a redemptive hero of Reconstruction.

  August 3, 2011 at 11:21 am   Posted in: Book Reviews, Civil Rights, Constitutional Law, Constitutional Redemption Symposium, History of Law, Uncategorized   Print This Post   No Comments

The Redemptive Role of Founding Principles

posted by Alexander Tsesis

Among the most interesting topics discussed in Jack Balkin’s Constitutional Redemption is the relevance of the Declaration of Independence. I found his thoughts very helpful for one of my current projects, Representative Self-Government and the Declaration of Independence, on the legal relevance of the Declaration to contemporary civil rights and campaign finance issues.

Many scholars have mistakenly taken the document to be a vestige of the past, but that is not the case with Balkin. He believes that “American constitutionalism is and must be a commitment to the promises of the Declaration makes about our future as a people.” Going even further, Balkin asserts that “the Declaration is our constitution . . . because it . . . constitutes us a people.” This statement has deep implications, but needs further fleshing out, which I have sought to do in my draft.

Unlike the Constitution, the Declaration of Independence lacks an enforcement clause: There is no Necessary and Proper Clause for protecting “life, liberty, and the pursuit of happiness,” which the Declaration asserts to be the innate rights of all people. And as Balkin correctly points out, courts typically give no substantive value to the Declaration. Yet the document remains a statement of the national ethos. Social movements–like abolitionists, feminists, and labor organizers–have shown time and again that the statements of rights found in the Declaration’s second paragraph has a significant influence on ordinary people’s understanding of governmental obligations, objectives, and achievements.

With that in mind, I turn to two comments from yesterday’s posts. First, with Mark Graber’s characterization of Lincoln. I agree with him that Lincoln “believed that egalitarian principles had to be balanced with other principles of equal constitutional pedigree” but don’t think that regarding him as a redemptive figure need bedazzle us to his imperfections. While Lincoln certainly was not a Garrisonian abolitionist, neither was he a Stephen Douglas Democrat. He was rather a man whose views on slavery, political and civil equality, and free labor evolved until John Wilkes Booth arrested that development. Their different positions on slavery and free blacks were clear to the audiences of the Lincoln/Douglas debates. Among other things they disagreed about the (in)validity of Dred Scott and the (il)legitimacy of popular governance in the territories. In 1860, presidential campaign literature clearly contrasted Douglas’s placation of slave interests and Lincoln’s opposition to slavery in the territories. Speaking at Cooper Union in February 1860, Lincoln explicitly stated that Republicans “in common with our fathers, who framed the Government under which we live, declare our belief that slavery is wrong.” But, what rightfully troubles us today, is his persistent statements that same year proclaiming the unconstitutionality of interfering with slavery in states where it already existed. That was a commonly held framework of the Republican party, and if he had taken a more radical position it is highly unlikely that he would have won the presidential election. Furthermore, even though his perspective had not yet matured to the point of emancipation and later support for the Thirteenth Amendment, one of the campaign songs of 1860, “Lincoln and Liberty”, included the lyrics: “Our David’s good sling is unerring, The Slaveocrats’ giant he slew, The shout for the Freedom-preferring for Lincoln and Liberty too!”. Thus even then, before South Carolina had even attacked Fort Sumter, Lincoln was conceived by voters as a redemptive figure capable of returning the nation to the unfulfilled promises of the nation’s framing.

There is much to criticize in Lincoln’s position in refusing on constitutional grounds to overtly support repealing the Fugitive Slave Act of 1850 and his support for the Corwin Amendment upon ascending to the presidency. But he also spearheaded the Emancipation Proclamation, which although limited in scope changed the central purpose of the Civil War to liberation of slaves and unification under the principles of the Declaration of Independence; a time of redemption, if you will or, in the words of Charles L. Black, “a new birth of freedom.” But Lincoln was too complex a character to describe him merely as a pragmatist, which can be said about most politicians, without adding that he was an authentic idealist as well. Lincoln was certainly a man who believed that America’s founding documents had a redemptive quality, often referring to the Declaration of Independence as a substantive guarantee of human equality.

     On a separate point, yesterday Gerard Magliocca asked the important question of how we can identify whether a framework of redemption is legitimate. He points out that the South conceived of constitutional redemption to be a return to the antebellum acceptance of racial supremacy. The question is how do we know that we have reached the finality of redemption; the end point of our effort to achieve fundamental justice. While I suppose that it is an ongoing process, with no end in sight, I believe that the founding documents offer us a response here as well.

Core standards that can play a redemptive role are stated in neutral terms: The Declaration of Independence spoke in terms of “unalienable rights” that all men–a term that feminists like Elizabeth Cady Stanton and Lucy Stone understood to mean “all people”–were created equal. The preamble speaks of “We the People of the United States” forming “a more perfect Union” for the sake of improving “the general Welfare.” The Ninth Amendment uses the neutral term of rights “retained by the people.” The Fourteenth Amendment’s statement about “the privileges or immunities of” all citizens, or the entitlement of all people to enjoy life, liberty and property without arbitrary state interference. There is no racialist supremacy in these words.

All of these provisions are in need of parsing, none is self-evident in meaning, but I think that none can be reasonably understood to reflect a herrenvolk democracy in a way that, say, the Confederate Constitution did. The existence of herrenvolk democracy in U.S. history–take Jacksonian America as an example–need not reflect negatively of the founding standards to which Balkin refers. As principled statements of national aspiration, to which I interpret Balkin’s redemptive constitutionalism to refer, these principles of representative democracy refer to all the people of the United States (E Pluribus Unum) not only a subset of them. The endpoint, therefore, appears through cultural refinement of our understanding of first principles, and, where necessary, the amendment of them to better protect the people’s fundamental rights.

  August 2, 2011 at 11:23 am   Posted in: Book Reviews, Civil Rights, Constitutional Law, Constitutional Redemption Symposium, History of Law, Law and Inequality   Print This Post   No Comments

Constitutional Redemption

posted by Alexander Tsesis

Jack M. Balkin’s profound book, Constitutional Redemption, develops an aspirational interpretation of the Constitution. The presentation is not nostalgic; rather, Balkin provides a hopeful picture of an evolving form of constitutional interpretation. His methodology requires the reexamination of existing social morality and political forms but not an abandonment of the Constitution’s commitments to standards and principles of justice.

Balkin’s narrative of redemption speaks of unfulfilled promises made at the nation’s founding. These promises, he argues, should guide reform. Improvement, amendment, and advancement are not merely results of blind flux, but concerted efforts to achieve the “promise[s] of the past.” He neither seeks nor engages in constitutional idolatry, but a belief that the ideals of liberty and equality imbedded into the document can mold public opinion against injustices that violate them.

Such a grand vision is based on faith that the Constitution’s flexible framework will be instrumental to the achievement of social justice. Balkin’s perspective is positioned with the leanings of scholars like Mark Tushnet, , Sanford Levinson, William Eskridge, and Larry Kramer, who regard social and political movements to be important actors for “shifting the boundaries” of what are considered to be reasonable and plausible alternatives to existing inequalities. According to Balkin’s perspective, the effect of civil rights groups on our understanding of the Constitution is reflected in cases like Brown v. Board of Education, Reed v. Reed, and Lawrence v. Texas. These decisions, indeed, bear witness to the ability of litigation groups–like the National Association for the Advancement of Colored People, Women’s Rights Project, and the Lambda Legal Defense and Education Fund–to integrate visionary popular activism into a constitutional framework compelling enough to alter Supreme Court decisionmaking.

I believe that in Balkin’s redemptive vision of constitutional interpretation lies, arguably, the central paradox of American history. The nation was built on the principled foundations of the Declaration of Independence, which recognizes universal inalienable rights like life, liberty and the pursuit of happiness, but from its inception the United States failed to fully carry those ideals into law. The Declaration too, I argue in a forthcoming book, offers the sort of visionary (or in Balkin’s language redemptive) possibilities that drove Abraham Lincoln’s vision of federal government and Martin Luther King, Jr.’s advocacy of reform.

While the founding document spoke in terms of liberal equality, not quite twelve years after the Declaration was signed (on June 21, 1788 when New Hampshire became the ninth sate to adopt the Constitution) the Constitution’s notorious protections of slavery became binding. That is, the Constitution was not merely a step forward in the establishment of binding institutions pregnant with redemptive possibilities but also a document that compromised some of the ideals of the Revolution. Even the ratification of the Reconstruction Amendments did not lead to immediate redemptions of those original ideals. But I believe that Balkin is correct, that the Constitution just as its legal forerunner, the Declaration of Independence, contains the necessary kernels of wisdom that allow for the national and human evolution of understanding about the significance of due process, equal protection, and the pursuit of happiness.

Balkin correctly points out that the many failures to live up to the nation’s ideals do not diminish the value of anti-classist promises the nation made to improve of people’s welfare. His redemptive model helps explain why abolitionists could condemn the nation for its gross failures while clinging to its ideals. The original documents were useful for those who condemned the nation’s existing practices and for those who sought a jubilaic plan for its reform.

A letter published in abolitionist Frederick Douglass’s newspaper, The North Star, mocked the Declaration of Independence’s assertion that “all men are created equal.” The author insisted that the document should be rewritten to say, “All men are created equal; but many are made by their Creator, of baser material, and inferior origin, and are doomed now and forever to the sufferance of certain wrongs–amongst which is Slavery!” To blacks, the writer went on to say, the Fourth of July was “but a mockery and an insult.” To the advocates of slavery, he surmised, “liberty and equality” meant no more than the noises of firecrackers, raised flags, and other raucous festivities. J.D. “The Ever-glorious Fourth”, North Star (Rochester, NY), July 13, 1849.

But there was more to be said about America; it was not merely a composite of its failures but also a set of affective and effective norms. Despite the nation’s failures, the Declaration of Independence committed the country to liberal equality. In this context, an ex-slave’s daughter described her father’s awakening when he heard the Declaration read aloud. From that moment, she wrote, “he resolved that he would be free, and to this early determination, the cause of human freedom is indebted for one of its most effective advocates.” Biography of an American Bondman, by His Daughter 15-16 (1856). Her father, William Wells Brown, successfully escaped in 1834, later to become a prolific novelist and abolitionist lecturer.

The author of Douglass’s paper reflects the failure to live up to the substance of freedom. But Brown’s experience speaks to the possibility of unfulfilled aspiration to inspire and guide individuals, and perhaps even the nation, to liberal equality. This ability to animate hope even in the course of culturally accepted injustice demonstrates the Constitution’s redemptive quality, providing visionary revitalization of existing institutions and leading to social beneficial revision.

  August 1, 2011 at 9:22 am   Posted in: Civil Rights, Constitutional Law, Constitutional Redemption Symposium, History of Law, Law and Inequality, Legal Theory, Race   Print This Post   No Comments

Edwin M. Stanton

posted by Gerard Magliocca

I’m pretty sure that the Bingham book is the only biography that I want to write, but I’ve been getting more interested in Edwin M. Stanton, Lincoln’s Secretary of War.  Stanton was Bingham’s professional and political rival in Eastern Ohio (they debated each other during the 1840 campaign, with Stanton taking the Democratic side and Bingham supporting the Whigs), though Stanton was far more successful in private practice.  He eventually moved to Washington and became a leading member of the Supreme Court bar. He was also a crack trial lawyer.  In 1859 he successfully defended Daniel Sickles on a murder charge (Sickles killed his wife’s lover, the son of Francis Scott Key) by basically inventing the temporary insanity defense.

In 1860, Stanton became Attorney General in the Buchanan Administration and then moved to the War Department as a legal advisor under Lincoln, which was somewhat unusual for a Democrat. When Secretary of War Simon Cameron was fired in 1862, Stanton took his place.  His tenure during the War is generally seen as a success, but the more pertinent point for legal scholars is that he played a critical role in the implementation of Reconstruction via military occupation.  His dismissal by President Johnson was the basis for Johnson’s impeachment, and I want to know more about Stanton’s journey from orthodox Democrat to Radical Republican.

In 1869, President Grant nominated Stanton to the Supreme Court and he was confirmed, but he tragically died four days later.  Stanton was 55.  The prospect of someone so intimately involved with Reconstruction being on the Court is intriguing and losing that service was unfortunate.

  May 25, 2011 at 9:04 am   Posted in: History of Law   Print This Post   No Comments

John Bingham–The Man

posted by Gerard Magliocca

Another interesting discovery in Cadiz was a recollection by William Lucas, who was a prominent African-American in the town (he was the municipal clerk for thirty years).  I think this gives us a taste of Bingham’s personality:

“It was my fortune to know Mr. Bingham intimately from my boyhood days.  Being a poor colored boy, I entered his family when about 17, and remained to do family chores and errands while attending the leading public schools—from 1867 to 1872.

From the first Mr. Bingham took a personal interest in me and assisted me much in my efforts to pass through schools here.  . . . In 1872 I graduated, and to rest up from school work I took a trip to Richmond Virginia to visit relatives there.

During this summer Mr. Bingham received his appointment to Japan, and now to show his deep interest in a poor unknown colored boy!  He was in need of a private secretary to accompany him to Japan.  No sooner did he arrive at his home after receiving his appointment; then he sought me out to take the position.  He came himself down to my mother’s house to offer me the place.  When he learned that I was away, he was quite insistent that I should go with him and asked mother to give him my address that he might send for me to come home at once.  My mother, in her ignorance supposed Japan, of which she had never heard, was somewhere clear outside of the world, and fearing I might go, and never return to her again, refused to give him the proper address or to inform me of the offer till it was too late, and so I lost the opportunity which I have many a time since sincerely regretted.  But I have never ceased to appreciate the friendly interest of Mr. Bingham as shown on that occasion.  That he in the zenith of his fame, should remember the errand boy at home and offer him a position of trust.”

Lucas then recalled another encounter with Bingham almost twenty-five years later:

“[M]y oldest son Fred, by accident fell from the roof of a house, sustaining injuries that, for many days, were thought to be fatal.  Day after day, we sat in hourly expectancy for that grim messenger to make his appearance.  During one of these dark sad days, I met Mr. Bingham on the street, who having heard of the accident, stopped me and said, ‘William Henry,” the name he always called me by, “How is Fred?”  When I had told him of his precarious condition, he said “Well, that is too bad.  You tell Fred that I am coming down to see him.”  He was then walking feebly with his cane himself and I hardly expected him to come down so far.  But that same evening I heard the tap of his cane on the porch.  Opening the door there was Mr. Bingham, who came in and sat down by the bedside of my sick boy.  It was a moment of surpassing interest.  Here was a great man who had thrilled the nation with his eloquence and whose statesmanship had won imperishable and lasting renown, sitting by what seemed to be the bedside of a poor dying colored boy; and with voice trembling with emotion and eyes dimmed with tears, he talked of the nearness of eternity and the kind love of the Heavenly Father, as tenderly as a mother would comfort her sick child.  And on going to leave, in bidding him good bye he said, chokingly with emotion, “Fred, in our Father’s house there are many mansions, we shall meet again.”

Toast by W.H. Lucas, Bingham Banquet, Oct. 5, 1901 (Harrison County Historical Society)

  May 11, 2011 at 8:15 am   Posted in: History of Law   Print This Post   2 Comments

John Bingham–Grass Roots Organizer

posted by Gerard Magliocca

One frustrating thing about my research on John Bingham is that I have not found many new primary sources.  In other words, I’ve gone through all of the known materials and am trying to track down the missing ones (I’ll say more next week about what might be in them), but I have not located much that was unknown.  There is, however, one significant exception.

What follows is an excerpt of a letter from Bingham to Salmon P. Chase written in 1845, when Bingham was a private lawyer in Ohio.  I think that this letter has not been quoted until now:

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“I think I may safely vouch for Liberty men generally in this vicinity, that your views and suggestions are fully approved.  We try to be as active as possible, in efforts to advance the cause, though we labor under many discouragements.  The counties of Scioto, Lawrence, Jackson, Gallia, and Meigs, are collectively, perhaps as inveterately Proslavery, as the same number of contiguous counties any where else in the State.  If there be any portion of the Ohio field demanding a greater share of anti-slavery Labor than any other, it would seem that these central frontier counties embrace that portion, and yet . . . have been wholly neglected.  Not a single Lecturer, document, or even extra newspaper has ever, to my knowledge, been sent into either of these counties, or any other kind of labor bestowed under the State Society’s patronage.  We have felt entirely neglected, and not a little surprised that the Committee should have found time to . . . direct three copies of their circular to the Post Office at Pine Grove.  For myself, hoping against hope I almost felt like hailing the circumstance as the harbinger of better days.  . . . . [T]he sending of Lecturers and printed documents into any part of the field where Liberty men are too few, or too poor to pay the expense, . . . seems to me imperative.  No doubt an immense amount of good might be done here, just in this very neighborhood, by the single week’s labor of a good Speaker . . . Being 10 miles from Gallipolis, back from the river, just far enough from that miserable pro-slavery atmosphere to be able to take breath without the danger of suffocation, and by dint of effort, obtained an under-current in our favor if we can . . . make a demonstration here, the influence will be seen and felt throughout the five counties . . . I pray you if possible, send us a laborer for a short time this fall, one who has a missionary spirit, whose heart and soul is in the cause; who will be willing to address small meetings or large ones, who will go from neighborhood to neighborhood, from one appointment to another . . . until this half-dead community shall begin to wake up and show signs of life . . .

It is all a mistake, that nothing can be done . . . in the large, wealthy, and populous portions of the State.  There people are entirely too fashionable—and it is just as different to get them to lay aside fashionable politics, as the fashionable . . . coat, or frock, or pair of breeches.  In the country we [are] not so accustomed to ape the fashions of the great, and considerations founded on moral truth and patriotism have more easy access to the heart and conscience, and produce more corresponding action.”

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Bingham was 30 when he wrote this, and what’s striking to me is how similar it sounds to what any civil rights lawyer in any age might say.  Next week I’ll be in Cadiz (Bingham’s home for most of his life), and I’ll post from there if I find anything worthwhile in the local archives.

  April 28, 2011 at 10:17 am   Posted in: History of Law   Print This Post   One Comment

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