Category: History of Law


What is a treaty? Is that the right question?

(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 More


John Bingham on the Promise of America

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.”



Standards of Redemption-Not Hero Worship

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.


The Redemptive Role of Founding Principles

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.


Constitutional Redemption

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.


Edwin M. Stanton

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.


John Bingham–The Man

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)


John Bingham–Grass Roots Organizer

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:


“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.”


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.


UCLA Law Review Vol. 58, Issue 3 (February 2011)

Volume 58, Issue 3 (February 2011)


Good Faith and Law Evasion Samuel W. Buell 611
Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19 Katherine Florey 667
The Need for a Research Culture in the Forensic Sciences Jennifer L. Mnookin et al. 725
Commentary on The Need for a Research Culture in the Forensic Sciences Joseph P. Bono 781
Commentary on The Need for a Research Culture in the Forensic Sciences Judge Nancy Gertner 789
Commentary on The Need for a Research Culture in the Forensic Sciences Pierre Margot 795


What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation Samuel M. Kidder 803
Defendant Class Actions and Patent Infringement Litigation Matthew K. K. Sumida 843


Interesting Cases That You’ve Never Heard Of — The Pueblo Indians

Several years ago I wrote an article that examined how the debate over Native American rights, especially the Cherokee Removal, influenced the framers of the Fourteenth Amendment.  The paper also explained there that this component of the original understanding should alter the way that we think about equal protection by introducing the possibility that the regulation of cultural choices, not just immutable traits, could be subjected to heightened scrutiny.  I must admit that I’m disappointed that nobody really picked up on this idea, but I thought I’d talk about one intriguing case that fleshes out the concept somewhat.

In United States v. Joseph, 94 U.S. 614 (1876), the Supreme Court held that the Pueblo Indians of New Mexico were not an Indian Tribe under federal law.  An 1834 statute prohibited anyone, under penalty of a fine, from settling on land secured to a Tribe by a treaty with the Federal Government.  The United States brought an action seeking to fine somebody who took a homestead on Pueblo land. The New Mexico Territorial Supreme Court rejected this action, on the grounds that the Pueblos were civilized and not an Indian Tribe. That court pointed out that the Pueblos lived in villages, were farmers, spoke Spanish, and were Christian.  By contrast, “[w]hen the term Indian is used in our acts of Congress, it means that savage and roaming race of red men given to war and the chase for a living, and wholly ignorant of the pursuits of civilized men.”  Though the Court conceded that the Pueblos could be racially defined as Indians, it explained that this was irrelevant.  Culture was what mattered.

The U.S. Supreme Court unanimously affirmed in an opinion by Justice Miller.  He distinguished the Pueblos from other tribes in the territory acquired during the Mexican-American War, who were incapable of self-government and therefore required “guardian care.” Although the Pueblos held their land in common rather than in fee simple, “they only resemble in this regard the Shakers and other communistic societies in this country, and cannot for that reason be classed with the Indian tribes . . .”.