The Author’s Corner With William Nelson

Nelson pluribusWilliam E. Nelson is Judge Edward Wienfeld Professor of Law at New York University. This interview is based on his new book, E Pluribus Unum: How the Common Law Helped Unify and Liberate Colonial America, 1607-1776 (Oxford University Press, 2019).

JF: What led you to write E Pluribus Unum?

WN: I decided to write a multi-volume history of colonial American law, of which E Pluribus Unum is a one-volume summary, because I knew that a massive amount of colonial courts records existed, that someone should study them, and that NYU Law School would support my study. Courts were the primary instrumentality of colonial government, and I believe the most important job of historians is to explain how government has worked in the past so that the people can better appreciate how to make it work for them in the present.

JF: In 2 sentences, what is the argument of E Pluribus Unum?

WN: The book traces how the early colonies had a variety of legal systems and how King Charles II and King James II for lack of other means decided to use lawyers and the common law to bring unity and effective governance to their colonies. For half a century, lawyers governed effectively on behalf of the Crown, but beginning with the Zenger case in 1735 and continuing in a series of cases thereafter, lawyers assumed an increasingly oppositional role, with the result that by the 1770s they were the leaders of the Revolutionary movement.

JF: Why do we need to read E Pluribus Unum?

WN: One reason to read the book is to understand the importance of law and local power in the DNA of the American nation; the nation still does not have bureaucratic national institutions that are capable of governing without the help of law and local power. The book also reports on significant details, such as the origins of judicial review of legislation during the Stamp Act controversy and the role of debt collection in the breakup of slave families and communities.

JF: When and why did you decide to become an American historian?

WN: In my last year of college, I couldn’t decide whether I wanted to practice law or become a history professor. The minute I arrived at law school, it became clear that the right path for me would be to become a law professor whose scholarly focus was on history.

JF: What is your next project?

WN: My next book is a comparative study of New York and Texas law in the 20th century, with a goal of striving to better understand what differentiates conservatives in places like Texas from liberals in places like New York.

JF: Thanks, Bill!

The Author’s Corner With Kelly Ryan

RyanKelly A. Ryan is Dean of the School of Social Sciences and Professor of History at Indiana University-Southeast.  This interview is based on her new book Everyday Crimes: Social Violence and Civil Rights in Early America (New York University Press, 2019).

JF: What led you to write Everyday Crimes?

KR: When I was researching my first book, I ran across records of abused wives in the revolutionary era and early republic who had the courage to report their husbands to a local justice of the peace. I was surprised by the activism of these women as we know that reporting abuse often leads to greater violence. I wondered about the resistance of slaves and servants –  two other groups categorized as legal dependents – and whether or not they had more or less success in stymying the violence of their masters. Focusing on these groups and newly freed African Americans from the colonial era through the early republic allowed me to get a glimpse of whose voices were privileged and the many ways that legally and socially subordinated individuals fought for their human and civil rights in a society that did not value them as highly as their social superiors.

JF: In 2 sentences, what is the argument of Everyday Crimes?

KR: Everyday Crimes argues that the resistance of wives, servants, slaves, and free African Americans to violence expanded their human and civil rights.  Although it was dangerous to contest assaults, legal and social dependents obtained greater access to legal rights to sue and offer testimony, expanded divorce and separation options, saw alterations in slave codes, and the emergence of emancipation statutes.

JF: Why do we need to read Everyday Crimes?

KR: In the past few years, our society has grappled with whose voices are privileged in cases of assault and murder. Everyday Crimes shares stories of the victims of violence and the ways our legal and social system indemnified some prosecutors of violence from condemnation. It’s important for Americans to understand how our history is a legacy that continues in the modern era, even as African Americans, women, and children have access to civil rights. We must keep searching for ways to better protect Americans and prevent violence.

JF: When and why did you decide to become an American historian?

KR: Like most historians, my interest in history stems from amazing teachers in high school and college. Maryknoll High School in Honolulu, Hawaii had passionate instructors of United States, European, and Asian history who taught history as a way of understanding our modern world. I was interested in a great number of things when I arrived at George Mason University in Fairfax, Virginia as a first year student, but the history professors there, most importantly Lawrence Levine and Howard Smead, made history relevant to everyday life and taught with such great joy. It was infectious. Moreover, I felt that history allowed me to continue focusing on my love of art, anthropology, and literature because all are sources of inspiration and research for historians.

JF: What is your next project?

KR: After 15 year of being a professional historian, I have so many stories connected to sexuality and violence in early America that I have not been able to tell as part of my previous scholarship.  I’d like to bring more of a biographical focus to the men and women who have encountered our criminal justice system. I’m really interested in sharing some of the information I’ve gathered about how early constables and police have been victims of and prosecutors of violence. I also have two forthcoming chapters in planned series edited by other scholars in the Routledge History of American Sexuality and the Cambridge History of the American Revolution.

JF: Thanks, Kelly!

The Author’s Corner with Steven Green

the third disestablishment

Steven Green is the Fred H. Paulus Professor of Law and Affiliated Professor of History and Religious Studies at Williamette University. This interview is based on his new book, The Third Disestablishment: Church, State, and American Culture, 1940-1975 (Oxford University Press, 2019).

JF: What led you to write The Third Disestablishment?

SG: Many things led me to write The Third Disestablishment.  I have written extensively about the ongoing dynamic of religious disestablishment in the 18th and 19th centuries.  My thesis has been (and continues to be) that there were various levels of disestablishment — political, institutional, legal, cultural — and that they occurred in incremental steps and at different times.  In essence, disestablishment was not perfected with the enactment of the 1st Amendment and, quite clearly, there was never a consensus on what it meant.  The Third Disestablishment brings this narrative forward to the mid-20th century where the Supreme Court formally embraced separation of church and state as the meaning of the Establishment Clause.  The book examines the cultural forces behind this embrace.  I felt that this was a story that had not been fully told before.

I also wrote the book in order to explore the background of the ongoing controversy over whether separation of church and state is/was the correct model.  The book also seeks to address why separationism arose, then fell into disfavor, at least as a legal principle.   Finally, on a personal level, in my earlier career as a 1st Amendment lawyer, I encountered several of the figures and organizations discussed in the book, though in their much later years.  This motivated me to examine the initial dynamic that led them to become involved in this issue.

JF: In two sentences, what is the argument of The Third Disestablishment?

SG: The book responds to more recent interpretations that maintain that separation of church and state became a legal and popular construct in mid-century due chiefly to residual Protestant suspicions of Catholicism.  It also maintains that even in its heyday, church-state separation was a contestable and indeterminate concept, and that its demise both legally and culturally began much earlier than has otherwise been maintained.

JF: Why do we need to read The Third Disestablishment?

SG: While numerous books have been written on the development of church and state, this book provides a fresh perspective by interweaving the cultural and legal developments of the period into  comprehensive narrative.  It examines the cultural backdrop to the Court’s adoption of its modern church-state jurisprudence.  It explores the roles of leading figures of the time, including Reinhold Niebuhr, John Courtney Murray, Paul Blanshard, Cardinal Francis Spellman, Billy Graham, Norman Vincent Peale, John F. Kennedy, and several consequential Supreme Court justices.

JF: When and why did you decide to become an American historian?

SG: I have been interested in the interaction between religion and politics/law in US history since undergraduate school.  I made the decision to enter a history PhD program after practicing law for 4 years.   Since then, I have had an amazing career that has allowed me to do legal advocacy, teaching, and scholarship in the area of religion, law, politics and history. 

JF: What is your next project?

SG: I am writing a book for Cornell University Press in its religion in public life series on–you guessed it–the development of church-state separation in American history.

JF: Thanks, Steven!

The Author’s Corner with Edward Rugemer

slave law and the politics of resistance in the early atlantic world

Edward Rugemer is an Associate Professor of African American Studies and History at Yale University. This interview is based on his new book Slave Law and the Politics of Resistance in the Early Atlantic World (Harvard University Press, 2018).

JF: What led you to write Slave Law and the Politics of Resistance in the Early Atlantic World?

ER: When I was in graduate school at Boston College, both Ira Berlin’s Many Thousands Gone and Philip Morgan’s Slave Counterpoint were published during the years before my oral exams. I read both and was inspired to take on a comparative project, though not, I was advised, for my dissertation. The idea for the comparison at the heart of this book came from my dissertation/ first book, The Problem of Emancipation: The Caribbean Roots of the American Civil War (Louisiana State University Press, 2008). I realized in writing that book that the planter classes in Jamaica and South Carolina had this very similar relationship with abolitionists. They were the most radically pro-slavery in these different regions of the Anglo Atlantic, the U.S. South and the British Caribbean. When I considered this realization alongside the work of Richard Dunn and Peter Wood, that both Jamaica and South Carolina were “colonies” of Barbados (to use Wood’s phrase), I saw that these two slave societies had followed very similar historical arcs. They had common origins, developed into the wealthiest colonies of their respective regions, and though each went its separate way during the American Revolution, both followed a very similar pattern in the aftermath of the Haitian Revolution and the emergence of radical abolitionism. Comparison requires both similarity and difference and the political histories of Jamaica and South Carolina have the necessary mix.

The central theme of the book — the relationship between slave resistance and broader political changes — also came from the first book, specifically in the first few chapters. I felt there was much more to say about the impact of slave resistance upon the political history of slave societies. Some of this work had been done by historians of the American Civil War era such as Jim Oakes and Steve Hahn, and historians of the nineteenth century Caribbean such as Mary Turner and Emilia Viotti da Costa, and more recently Gelien Matthews and Claudius Fergus. But no one had gone deeper into the colonial period and I thought it was important to do so.

JF: In two sentences, what is the argument of Slave Law and the Politics of Resistance in the Early Atlantic World?

ER: Very early in the history of Atlantic slave societies a political dialectic developed between Africans who forcefully resisted enslavement, and slaveholding colonists who sought to impose the rigid social control they saw as necessary for profitable colonial enterprise. This dialectic is evident in slave law, it developed and changed until the abolition of slavery, and it shaped the histories of Jamaica and South Carolina in fundamentally different ways.

JF: Why do we need to read Slave Law and the Politics of Resistance in the Early Atlantic World?

ER: First, it is a valuable account of, and explanation for, the political significance of slave resistance in Anglo-Atlantic slave societies from their origins to the 1830s. Secondly, the book makes clear the differences between the slave regimes of the Caribbean and the U.S. In this way it complements Richard Dunn’s important study, A Tale of Two Plantations

JF: When and why did you decide to become an American historian?

ER: I worked as a Jesuit volunteer teaching high school in Kingston, Jamaica, from 1994-1996 and my experience there led me to some deep reading in the history of slavery and eventually graduate school.

JF: What is your next project?

ER: I have two different projects that are in the early stages. I am thinking about writing a synthesis of slavery in the Western World. My most ambitious self wants to start with some of the theories on the origins of slavery, move into ancient Greece and Rome, the decline of slavery in Western Europe and its persistence in the Mediterranean, the expansion into the Atlantic. But I want to take this history up to modern slavery and human trafficking in our own time. I don’t think we have an historical narrative that integrates the racial slavery of the Atlantic World, which lasted for generations and has had such insidious afterlives, with the various forms of slavery that persist today. Many modern day abolitionists invoke the abolitionist movements of the past without careful attention to the distinctions between these manifestations of slavery across time and space. Historians need to do this. So I’d like to come up with a synthesis that brings this history together.

The second idea is a deeply archival project about a slaveholder we know very little about. His name is Charles Douglas and the Beinecke Library has about 30 years of his correspondence with his brother Patrick. I read it all during my first year at Yale, thinking I would use it for this book, but I only used one brief quote. Douglas moves from Ayr, Scotland to Jamaica when he was a teenager. He mostly worked as a bookkeeper at first (kind of an assistant overseer), but he does accrue some wealth and becomes a slaveholder. What’s curious about him is that when he buys land, he buys land that directly abuts Moore Town in the Blue Mountains, which is one of the Maroon Towns. He becomes the superintendent for the Moore Town Maroons, which is a position established by the 1739 treaties that ended the first Maroon War and recognized Maroon autonomy within the colony. Formally, he was the Maroons’ military commander, but in fact I don’t think it worked that way. Yet there were these superintendents, one for each of the towns, and they were well paid by the colonial state. But there is an archival challenge: I need to find his reports. I don’t know where they are and no one has ever referenced them. And if I can find them, it could be a really interesting book. I need to dig deeper and I love that challenge, but it will take some time.

JF: Thanks, Edward!

The Author’s Corner with Loren Schweninger

9780190664282Loren Schweninger is Professor Emeritus of History at UNC Greensboro. This interview is based on his new book Appealing for Liberty: Freedom Suits in the South (Oxford University Press, 2018).

JF: What led you to write Appealing for Liberty?

LS: For many years I have been interested in freedom suits in the South, beginning in 1970 when I discovered a suit for a family–Thomas/Rapier–that became the basis for my doctoral dissertation at the University of Chicago on James Rapier and Reconstruction.  During the period 1991 thru 2009 I headed a project titled “The Race and Petitions Project” at the University of North Carolina at Greensboro (now on line at the University with some 60,000 “hits” each month and part of Proquest’s Slavery and the Law Collection”. Most of the freedom Suits in this study come from this collection.

JF: In 2 sentences, what is the argument of Appealing for Liberty?

LS: The book argues that African Americans were involved in contacting lawyers and bringing the suits to court and that to a surprising degree many among them are successful, in about three fourths of the cases. 

JF: Why do we need to read Appealing for Liberty?

LS: Anyone interested in the African American experience, race relations, and the coming of the Civil War should be interested in this volume.

JF: When and why did you decide to become an American historian?

LS: I became an American historian in 1966 under to tutorship of John Hope Franklin, a life-long mentor and friend. I’m now a professor emeritus, retired in 2012, at the University where I taught African American history for forty years.

JF: What is your next project?

LS: With regard to my next project I’ve been thinking about an examination of Slavery and Freedom in the District of Columbia, but this is in its very early stages.

JF: Thanks, Loren!

Clarence Thomas Makes It Into the National Museum of African American History and Culture

Clarence_Thomas_official_SCOTUS_portrait
Back in July we wondered why Clarence Thomas was not in the National Museum of African American History and Culture.  Read that post here.

Well, it looks the second African American Supreme Court justice will now get a place in the museum just in time for the celebration of its one-year anniversary.  Bradford Richardson reports at The Washington Times:

Just in time to celebrate its first anniversary, the Smithsonian’s National Museum of African American History and Culture has included a display featuring Justice Clarence Thomas, one of the U.S. Supreme Court’s conservative stalwarts.

Justice Thomas appears in an exhibit that was installed shortly before the one-year anniversary Sunday, a Smithsonian spokeswoman said Monday. The display honors both of the black justices who ascended to the pinnacle of the legal profession. The other is Thurgood Marshall.

Justice Thomas’ apparent omission irked conservative observers, who suspected an ideological bias among Smithsonian officials and called for the influential jurist’s inclusion in the museum.

Ronald D. Rotunda, distinguished professor of jurisprudence at the Dale E. Fowler School of Law at Chapman University, said Justice Thomas deserves to be recognized for his contributions to constitutional jurisprudence, his record of public service and his inspirational life story.

Read the entire piece here.

The Author’s Corner with Kate Brown

brownKate Brown is Assistant Professor of Political Science at Huntington University. This interview is based on her new book, Alexander Hamilton and the Development of American Law (University Press of Kansas, 2017).

JF: What led you to write Alexander Hamilton and the Development of American Law?\

KB: I have been fascinated with Alexander Hamilton since high school—long before Hamilton, the musical, made him a household name—so it was pretty much guaranteed that Hamilton would be a primary subject for my first book.  When I realized in graduate school that historians virtually ignore the legal side of Alexander Hamilton’s career—that is, Hamilton as legal and constitutional theorist, Hamilton as an in-demand lawyer, Hamilton’s thriving New York legal practice—I knew that I wanted to explore his accomplishments through the lens of the law.  This book does just that.

JF: In two sentences, what is the argument of Alexander Hamilton and the Development of American Law?

KB: 1) We are familiar with Hamilton’s political efforts to shape policy in the young republic; my research demonstrates how Hamilton used common law and constitutional law, more so than politics, to successfully accomplish his policy goals and statecraft.  (Each chapter details a particular Hamiltonian policy goal and the legal toolbox Hamilton used to accomplish it.)

 2) Alexander Hamilton’s legal legacy—that is, his influence on the jurisprudence of federalism, individual rights, judicial and executive power—is far-reaching and foundational, extending well into the nineteenth and occasionally the twentieth centuries.  For these reasons, Hamilton should be considered a true founding father of American law.  

JF: Why do we need to read Alexander Hamilton and the Development of American Law? 

KB: My insights into the ways Hamilton used law to accomplish his policy goals—achieving unity through union, creating economic prosperity and public creditworthiness, encouraging commerce and manufacturing, and developing judicial and executive authority, to name a few—offer a wholly novel perspective on Hamilton. Scholars and biographers before me had largely ignored or written off Hamilton’s legal career, yet I demonstrate that not only was his legal practice influential, but Hamilton’s legal legacy lasted for decades after his death.  By writing this analytical biography through the lens of law, I offer a completely unique perspective and analysis of an otherwise well-known founding statesman.

 (A quick note:  you do not have to be familiar with law or be a lawyer to understand Hamilton’s legal arguments and the legal history I’m writing here.  I minimize jargon, I explain my arguments in terms that do not require legalese, and I always emphasize the big, important points about Hamilton’s legal legacy over any legal minutiae.) 

JF: When and why did you decide to become an American historian? 

KB: I caught the early-republic bug in high school, when I found Hamilton to be so remarkable (and seemingly uncelebrated, as compared to his contemporaries like Washington and Jefferson).  I did not formally decide to make history my profession, however, until I decided to go back to graduate school after a first career in corporate America. But once I decided to become a historian, there was no doubt that I would study American history, with a sub-specialty in legal history. Not only is American history fascinating, but its continued relevance for our informed understanding of twenty-first century politics and current events makes the study of history an indispensable public service. 

JF: What is your next project? 

KB: When researching Alexander Hamilton and the Development of American Law, I noticed that Hamilton kept making appearances in this important, and really unique, appellate court in New York state:  the Court for the Correction of Errors.  This court was so distinctive because it was the highest court in the state—trumping New York’s Supreme Court, and deciding hugely important cases dealing with matters relating to commerce, marine insurance, federalism, and individual rights—and yet it was consciously modelled after England’s House of Lords. The Court of Errors (as contemporaries called it) mixed the judicial and legislative powers inextricably—both the highest judges in the state and the state senators presided over the Court of Errors making judicial decisions.  And so, for almost 70 years, this court shattered norms about the separation of powers—and that is one reason I am so intrigued by it—but it also attracted the best legal talent in the early republic (including, of course, Hamilton).  The Court of Errors was a unique venue for lawyerly talent, as well as a recruiting ground of sorts for the U.S. Supreme Court.  Despite all of this, scholars have ignored the court and its influence on judicial power in the early republic.  I intend to change that by writing an institutional biography of the court, the legal professionals arguing in and presiding over it, and its formidable impact on early-republic jurisprudence

JF: Thanks, Kate!

 

 

America and the Ten Commandments

StoneOxford University Press blog is running an excerpt from Jenna Weissman Joselit‘s new book Set in Stone: America’s Embrace of the Ten Commandments.

Here is a taste:

Although we are told that Moses received the Ten Commandments at Mount Sinai, their presence has always been particularly strong in America. Regardless of who invokes them and for what purpose, the Ten Commandments have proved to be incredibly versatile and enduring in our cultural idiom. Below you’ll find ten moments in American history where the Decalogue has made its presence felt.

1. In June 1860, a man in Ohio named David Wyrick found an oddly shaped stone in one of the many Native American burial sites in the area which had indecipherable markings on it. He claimed to have found one of the stone tablets that God had bestowed upon Moses. Largely ridiculed at first, he then discovered another stone, shaped like the top of a church window which was covered in what was later confirmed as a variant of Hebrew script. When brought to experts the script did indeed feature a form of the Ten Commandments, abbreviated, but still the basic text. Was it authentic or an elaborate hoax? You can go to the Johnson-Humrickhouse Museum in Coschocton, Ohio to see the stones for yourself.

2. In 1897, Alabama Senator John Tyler Morgan proposed that all immigrants be given a test to display mastery of the Ten Commandments in order to gain American citizenship. He claimed that it was not a religious test but rather a “test that goes to the constitution of society.”

3. In 1905, the Congregation Sherith Israel in San Francisco revealed the stain glass window of its newly constructed synagogue. At first glance, the window seemed to depict a traditional scene of Moses descending from Mount Sinai with the stone tablets in his hand. Closer examination, however, revealed that the mountain in the background was not Mount Sinai, nor were the flora and fauna that of Israel. Rather, El Capitan of the Yosemite Valley loomed in the background, complete with the plant and animal life of central California, refiguring the Golden State as the Promised Land.

Read the entire post here.

The Author’s Corner with Abigail Chandler

Abigail Chandler is Assistant Professor of History at University of Massachusetts at Lowell. This interview is based on her new book, Law and Sexual Misconduct in New England 1650-1750: Steering Toward England (Ashgate Pub Co., 2015).

JF: What led you to write Law and Sexual Misconduct in New England, 1650-1750?

AC: When I was seventeen, I came across an account of another seventeen year old named Rachel Atkins who purchased much of modern day Small Point, Maine, from three Abenaki in 1675. Several years later, I read that her older sister took their father to court on incest charges in 1668 and that led to my wider research in the colonial New England court records, where I began noticing both changes over time and differences between the individual colonies. If Massachusetts was founded by colonists seeking to rewrite English law and English society, colonists in both Maine and Rhode Island modeled their early legal systems more closely on English common law. Maine colonist Thomas Gorges wrote in 1642 that he wanted Maine’s law “to steare as neere as we could to the course of Ingland” and this idea of law steering towards or away from England is what pulled all the different trials together into a larger story about the shifting role of English law in colonial New England’s sexual misconduct prosecutions.

JF: In 2 sentences, what is the argument of Law and Sexual Misconduct, 1650-1750?

AC: Law and Sexual Misconduct is about the legal process used to prosecute sexual misconduct in the colonies of Massachusetts, Maine and Rhode Island between 1650 and 1750. It argues that John Murrin’s “Anglicization” thesis, the idea that the English colonies were at their most English on the eve of the American Revolution, is better described as a process of “Alternating Anglicization” as each colony considered its own relationship with English law differently at different times.

JF: Why do we need to read Law and Sexual Misconduct, 1650-1750?

AC: There have been many books written about growing imperial control over the British North American colonies in the late seventeenth and eighteenth centuries and this is a topic we know a great deal about. What we know less about is how this process felt to ordinary colonists experiencing it on the ground in North America. My research demonstrates that both sexual misconduct laws and the resulting courtroom procedures shifted in response to these wider imperial changes. And because sexual misconduct was a crime which was consistently tried over long periods of time and which targeted both men and women, examining sexual misconduct trials in relation to the imperial process provides a window onto the impact these changes had on the daily lives of colonists, particularly women, in the New England colonies.

JF: When and why did you decide to become an American historian?

AC: Finding that account of Rachel Atkins’ land purchase when I was seventeen started me reading colonial New England history in high school and, eventually, drew me to graduate school and my work as an assistant professor at the University of Massachusetts Lowell. My first history conference in graduate school was the Omohundro Institute of Early American History and Culture conference, which was held in Boston that year. I gave my paper in a building opposite the street from the Granary Burying Ground where Rachel is buried. After giving my paper, I crossed the street to the Granary to say thank you.

JF: What is your next project?

AC: At first glance, my next project has nothing to do with this first book as it’s a comparative study of the Stamp Act crisis throughout the British North American colonies in 1765 and the Regulator Rebellion in North Carolina in the late 1760s and early 1770s. However, my interests in the shifting role played by English law in the wider Anglo-American world and in the lives of ordinary colonists play an equally large role in this project and so it does feel like something of a sequel to me.

JF: Thanks, Abigail!

 

The Origins of Modern Gun Rights and the Antebellum South

Over at The Atlantic, Saul Cornell and Eric Ruben argue: “the idea that citizens have an unfettered constitutional right to carry weapons in public originates in the antebellum South, and its culture of violence and horror.”  Cornell is the Paul and Diane Guenther Chair in American History at Fordham University and the author of A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America.  Eric Ruben is a jurisprudence fellow at the Brennan Center for Justice at the New York University School of Law.

Here is a taste of their piece:

Gun-rights advocates have waged a relentless battle to gut what remains of America’s lax and inadequate gun regulations. In the name of the Second Amendment, they are challenging the constitutionality of state and municipal “may issue” regulations that restrict the right to carry weapons in public to persons who can show a compelling need to be armed. A few courts are starting to take these challenges seriously. But what the advocates do not acknowledge—and some courts seem not to understand—is that their arguments are grounded in precedent unique to the violent world of the slaveholding South.

Gun-rights advocates have waged a relentless battle to gut what remains of America’s lax and inadequate gun regulations. In the name of the Second Amendment, they are challenging the constitutionality of state and municipal “may issue” regulations that restrict the right to carry weapons in public to persons who can show a compelling need to be armed. A few courts are starting to take these challenges seriously. But what the advocates do not acknowledge—and some courts seem not to understand—is that their arguments are grounded in precedent unique to the violent world of the slaveholding South.

Public-carry advocates like to cite historical court opinions to support their constitutional vision, but those opinions are, to put it mildly, highly problematic. The supportive precedent they rely on comes from the antebellum South and represented less a national consensus than a regional exception rooted in the unique culture of slavery and honor. By focusing only on sympathetic precedent, and ignoring the national picture, gun-rights advocates find themselves venerating a moment at which slavery, honor, violence, and the public carrying of weapons were intertwined.

The opinion most enthusiastically embraced by public-carry advocates is Nunn v. State, a state-court decision written by Georgia Chief Justice Joseph Henry Lumpkin in 1846. As a jurist, Lumpkin was a champion both of slavery and of the Southern code of honor. Perhaps, not by coincidence, Nunn was the first case in which a court struck down a gun law on the basis of the Second Amendment. The U.S. Supreme Court cited Nunn in District of Columbia v. Heller, its landmark 2008 decision holding, for the first time in over 200 years, that the Second Amendment protects an individual right to possess a handgun in the home for self-defense. Why courts or gun-rights advocates think Lumpkin’s view of the right to bear arms provides a solid foundation for modern firearms jurisprudence is puzzling. Slavery, “honor,” and their associated violence spawned a unique weapons culture. One of its defining features was a permissive view of white citizens’ right to carry weapons in public.  

Read the rest here.

The Author’s Corner with Emily Blanck

Emily Blanck is Associate Professor of History at Rowan University. This interview is based on her new book, Tyrannicide: Forging an American Law of Slavery in Revolutionary South Carolina and Massachusetts (University of Georgia Press, November 2014). 
JF: What led you to write Tyrannicide?

EB: It is a long history. When I first entered Graduate School at William and Mary, I became very interested in the history of slavery in New England and the law because I encountered Lucy Terry Prince, a former slave who had defended herself in court and fought for her son to go to a white college soon after the Revolutionary War. So many aspects of this fascinated me… But especially two issues: The presence and absence of slavery in Massachusetts and the way a black woman had access and felt empowered to use the courts.

So, I began to explore slavery and the law in Massachusetts as a PhD student at Emory University. When researching Massachusetts slavery and the law I discovered something else that entranced me, a letter from the Chief Justice in Massachusetts, William Cushing, in 1783 to South Carolina’s Governor, Benjamin Guerard explaining the status of ten South Carolina fugitive slaves released from Massachusetts’ jails. The letter surprised me, again, for many reasons, but especially because it reverberated with antebellum antagonism over slavery.

This began my journey to uncover the story of these slaves, a story I call the “Tyrannicide affair” after one of the vessels that escorted the slaves to Massachusetts, and to compare the law of slavery in both South Carolina and Massachusetts. For my book, I chose to dig deep into the tumultuous world of the black experience during the Revolution to explain the social, political, and legal context in which this story lived. It led me to the Constitutional Convention and the writing of the Fugitive Slave Clause.

JF: In two sentences, what is the argument of Tyrannicide?

EB: Tyrannicide argues that slave law (and the law that ended slavery) in Massachusetts and South Carolina had very different local contexts, drawing each state to regard their enslaved black populations in very different ways, writing divergent slave law, and eventually ending slavery in Massachusetts. This case elucidates the nature of that difference as these two states are drawing together in a Union, culminating in the writing of a Constitution that silently affirms the United States as a nation of slavery. 


JF: Why do we need to read Tyrannicide?

EB: This book provides a new and exciting story for us to understand the complex nature of slave law in Revolutionary America. Slavery and slave law was not developing in a vacuum in each state but was a dynamic interchange between local and national interests. This negotiation allowed the United States to form into a strong union, but the local dissonance provided the foundation for the deep cracks that slavery caused in the Constitution that other historians have already noted. 

JF: When and why did you decide to become an American historian?

EB: I began college at University of Texas at Austin as a classics major, but was poor in languages. I began to look for other interests when I took US History from a popular professor, Dr George C. Wright. He taught us that US History was not a litany of Presidents but was an examination by historians of ordinary people. I loved learning about it, I loved the empowerment that came with historical interpretation, and I became passionate about understanding the roots of inequality in our country. I changed my majors to History and African American Studies and researched US History as much as I could at a huge university like Texas. I took a couple of years off to decide what to do after graduating, but quickly got drawn back into researching history and applied to Graduate School.

JF: What is your next project?

EB:  I am coordinator of American Studies at Rowan and wanted to continue my study of slavery with an American Studies angle. I have decided to write my next project on the holiday, Juneteenth. Juneteenth commemorates the end of slavery in Texas on June 19th, 1865, over two years after the signing of the Emancipation Proclamation. This celebration quickly spread throughout Texas, then as Black Texans left the state during and after the Great Migration, it moved to cities throughout the US. In the past twenty years, a grassroots movement has successfully pressed for it to be recognized as a state holiday in 44 states! 

JF: Looking forward to it, thanks Emily!
And thanks to Megan Piette for facilitating this installment of The Author’s Corner

John Adams Took The Case

Heather Cox Richardson reminds us, in a post titled “John Adams and the Rule of Law in Boston,” that Adams defended the British soldiers who fired into a crowd on March 5, 1770, killing five people.  Of course we know this event as the Boston Massacre.

Richardson draws some parallels between Adams’s insistence that the British soldiers get a fair trial and the case of Boston Marathon bomber Dzhokhar Tsarnaev.  Here is a taste:

Message boards and blogs are full of angry people calling for Marathon bomber Dzhokhar Tsarnaev to be tortured or killed. Or both. Immediately. After all, it’s pretty clear he’s guilty, right? Why waste tax dollars on this guy with a long, expensive trial? 
 
And anyway, who ever said a terrorist who murders Americans should get a fair trial? 
 
Well, Founding Father John Adams, for one. Right here in Boston…
 
But by insisting on a fair trial for his country’s enemies, Adams served his cause far better than if he had bowed tothe popular desire to mete out mob justice. Adams and his team established that Massachusetts—and by extension, the new nation Massachusetts men wanted to create—would put no man, even a killer, beneath the law, and no man above it. Theirs would be a nation based not on popular sentiment, but on law. “Facts are stubborn things,” Adams said in defense of the soldiers, “and whatever may be our wishes, our inclinations, or the dictates or our passion, they cannot alter the state of facts and evidence.” He went on: “The law no passion can disturb. ‘Tis void of desire and fear, lust and anger. ‘Tis . . . written reason, retaining some measure of the divine perfection. It does not enjoin that which pleases a weak, frail man, but, without any regard to persons, commands that which is good and punishes evil in all, whether rich or poor, high or low.”
 
What do you think of this comparison?

Foner Sets the Record Straight on the 14th Amendment and Immigration

Writing for Bloomberg, Columbia University historian Eric Foner reminds us that the 14th Amendment to the U.S. Constitution means that anyone born in the United States, “with minor exceptions,” is a citizen of the United States…even the children of illegal immigrants.

Foner provides some much needed historical perspective on this issue. Since I could not decide on a good excerpt for the blog, why not just read the entire piece.

James Madison’s Lost Law Notes

John Warren at New York History reports on a 39-page book of James Madison’s law notes recently found among the Thomas Jefferson papers at the Library of Congress by legal scholar Mary Sarah Bilder. Bilder has an essay on her find in the recent issue of Law and History Review entitled “James Madison, Law Student and Demi-Lawyer.”

Here is a snippet from Warren’s report:

Bilder contends that the law notes demand a reassessment of Madison who, unlike other important early national leaders such as John Adams, Thomas Jefferson and John Marshall, had been thought to have had little interest in law beyond some desultory early studies.

The notes cover a wide range of topics including criminal law, the make-up of courts, elections, how to accurately measure time and even sex and relationships.…

It is only a matter of time before a Christian nationalist uses these notes to prove that Madison was a Christian or was somehow influenced by Christian ideas about the law.