The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government (original) (raw)

Legal and Constitutional History

A decade ago I contributed to the Annual Survey of American Law my first review of the literature in the field of American legal history.' This year I would like to look back over the past ten with the hope of identifying at least some of the continuities and changes in the literature during that period. Continuities in the Literature.-Many legal historians continue to concentrate on discussions of factual data in their writings about the American legal past. Some legal historians, such as Robert Mennel in Thorns and Thistles: Juvenile Delinquents in the United States, 1825-1940,2 have enlarged our factual knowledge on a variety of narrow topics. 3 Others are still writing books and articles which do little other than cover familiar factual ground. 4 Such works include Alan Reitman's

Law's Imagined Republic: Popular Politics and Criminal Justice in Revolutionary America

Journal of American History, 2011

Law's Imagined Republic Law's Imagined Republic shows how the American Revolution was marked by the rapid proliferation of law talk across the colonies. This legal language was both elite and popular, spanned different forms of expression from words to rituals, and included simultaneously real and imagined law. Because it was employed to mobilize resistance against England, the proliferation of revolutionary legal language became intimately intertwined with politics. Drawing on a wealth of material from criminal cases, Steven Wilf reconstructs the intertextual ways Americans from the 1760s through the 1790s read law: reading one case against another and often self-consciously comparing trans atlantic legal systems as they thought about how they might construct their own legal system in a new republic. What transformed extraordinary tales of crime into a political forum? How did different ways of reading or speaking about law shape our legal origins? And, ultimately, how might excavating innovative approaches to law in this formative period, which were forged in the street as well as in the courtroom, alter our usual understanding of contemporary American legal institutions? Law's Imagined Republic tells the story of the untidy beginnings of American law. Steven Wilf is Joel Barlow Professor of Law at the University of Connecticut. He is the author of The Law Before the Law (2008), which examines how legal systems address the problem of existing law prior to a law-giving moment, and numerous articles in law and history. Professor Wilf's research focuses on intellectual property law, historical jurisprudence, and legal history.

Future(s) of American Legal History

University of Toronto Law Journal, 2012

Critical Legal History (CLH) is currently being subjected to sustained critique and re-examination by some legal historians. This review essay looks at this debate in the context of two recent books on American legal history: Christopher Tomlins’s Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865 (2010) and Laura Edwards’s The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (2009). In keeping with the thrust of CLH scholarship, both books problematize the connection between law and narratives of freedom and equality in American history, and both show law as a significant force for non-freedom and inequality. Yet, in a recent symposium on Robert Gordon’s classic article ‘Critical Legal Histories’ (1984), both authors chose to distance themselves from CLH. After explaining what is significant and important about each book, this review essay describes the debate in that symposium. Notwithsta...

Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements

2014

This essay was influenced by a class on Law and Social Movements that Professors Guinier and Torres taught at the Yale Law School in 2011. This essay was also informed by numerous conversations with Bruce Ackerman regarding his book that is under review in this Symposium. While we are in fundamental agreement with Professor Ackerman's project, as well as the claims he makes as to the new constitutional canon, we supplement his analysis with the overlooked impact of the lawmaking potential of social movements. In particular, we focus on those social movements that were critical to the legal changes that formed the core of Professor Ackerman's book. The strong claim that we are making is that the social movements of the civil rights era were actually sources of law. The weaker claim is that these social movements deeply influenced the formal legal changes represented by the statutes and Supreme Court decisions that framed the constitutional moment so convincingly illustrated by Professor Ackerman. In order to make the stronger claim, we demonstrate how social movements made some legal conclusions not just more likely, but for all intents and purposes, inevitable. The way the Court interpreted existing racial justice jurisprudence and was responsive to the constitutional understanding represented by non-elite actors in the civil rights and social justice movements that had their high water mark in the 1950s and '60s. authors. Gerald Torres recently joined the permanent faculty at the Cornell Law School,

Where the Law Lies: Constitutional Fictions and Their Discontents

Law and Lies, 2015

My contribution to the volume Law and Lies begins with the observation that America is built on a lie. That lie inheres in its foundational text, the Constitution of the United States, which begins in the false claim to speak of and for “we the people” even as the majority of its population – in particular black men and all women – were denied access to the most basic forms of political participation. This simultaneous act of symbolic inclusion and material exclusion has never been fully acknowledged or confronted, which is another way of saying that it has never really ended. As many lies are, America’s constitutional lie is generative: it produces other, secondary, mutually reinforcing legal fictions that obscure the deception buried deep in the social and political structure. These fictions serve multiple purposes, including providing reassurance to those holding abstract commitments to equality as well as seducing and subduing excluded groups that might otherwise demand recognition and reparation for injustices done to them. As long as these constitutional fictions persist, the political existence of women and black men remains fundamentally unstable.

"It is Not an Era of Repose": How the Legal System Personalizes Injustice and Sparks Protest

In the last months of 2014, many Americans were reminded of the sad truth that policing can be brutal and that black bodies and black lives are often the targets of that brutality. In Staten Island and in Ferguson (and elsewhere), images of young black men killed by the police generated a thrum of anger. While there were people in the streets protesting the killing of Eric Garner and Michael Brown, these early protests were local, and the protestors were mostly committed activists or members of the impacted (largely black) community. The protests did not jump these limits to become national until the sympathetic bystanders saw that the officers in Missouri and New York were not indicted. Brutality was tragic, the failure to “do justice” was an outrage. This article places this observation in historical context by looking back at similar dynamics across the last two centuries. What emerges is a genealogy that links the swelling protests in 2014 to moments of broader outrage throughout the historical struggle for racial justice. Again and again, where allies stood on the sidelines silently condemning violence, it was the spectacle of the legal system – their legal system – acting unjustly that sparked action.