This week's readings - 27 Feb 2013

I didn't much care for the Grossberg article.  His approach is very abstract and I left the article with the sense that he stood alone as the only historian who knew anything of value about the legal history of the American family.  In fact, he claims a "historical void" was present in family law and "a history of the law of the family does not exist."  There is quite a substantial gap between asserting existence of a "historical void" and tempering things a bit to say - for example - that there are historical gaps or deficiencies in the matter under consideration.  Hyperbole usually ends up undermining the credibility of its author and it usually isn't a stretch to identify its misleading characteristics.  To confirm the point a bit, I'll cite one example.  On page 845 of his article, Grossberg conveys that historian/lawyer James Schouler had written "The Law of Domestic Relations" in 1870, a work Grossberg identifies as "a comprehensive presentation of family law" that is "a summary of...nineteenth century American family law."  In a general manner, he supplements this theme by often referencing how "not much attention" has been paid to this or that.  That can pretty readily be taken as a broad, presumptuous, overreaching, and difficult to prove contention.  Consistent with what I saw as a negativity that prevailed throughout the article, he didn't have much good to say about his fellow historians, either.

I found the other two articles much more useful and insightful.  The Gordon article on Utah/Mormon polygamy was especially good at pointing out how often polygamy caught suffragettes in Catch 22 situations.  I found it particularly interesting how those who supposedly supported women's suffrage were simultaneously able to argue that women's suffrage in Utah was unacceptable.  There is a lot to be learned here about modern day political rhetoric and its inherent and consciously crafted duplicity.

I also found the Tanenhaus article very informative and well done.  His use of the Illinois Supreme Court and its relevant deliberations gave clear insights into some of the more essential family law deliberations.  And - like Novak had done last week - Tanenhaus was able to connect the Reconstruction Amendments to a much broader range of civil liberty considerations than that which the subject amendments were originally drafted to encompass.  



 

Don't touch my drink!

The idea of the sanctity of a person's right to drink - as discussed a bit in the 20 February class - struck me as a rather interesting area in which to attach so much significance.  In that week's reading, we had seen how homes and businesses had been destroyed by governments - absent compensation or reimbursement - without causing a huge public stir.  But the notion of depriving a person of his or her right to drink seemed to rise to a much higher level of affront and personal contentiousness.  Are we now seeing the same level of contentiousness and individual resistance in the ongoing matters of gun control?  Does a woman's "right" to abortion rise to a similar level?  Did civil rights protests and Vietnam demonstrations - and the recognition of the liberties they sought - generate the same degree of widespread majoritarian emotionalism?  

What might be some of the other liberties that American citizens have found critical, personal, and worthy of emotional individual defense?  Why do they attach so strongly to one issue - like the right to drink - and less so to others?  What causes one issue to take on a plain "near and dear" identity whereas another issue - which on its surface may appear to rise to a similar level of individual significance - causes hardly a public stir?  

The People's Welfare question

In Chapter 1, Novak describes the two forms of modern liberal mythologoy: liberal constitutionalism and legal instrumentalism.  I confess that I did not understand what he was describing on p. 23, about legal instrumentalism.  It seemed to have something to do with an overemphasis on the economy, but otherwise I'm not sure.  Private law related somehow or was a component, but I wasn't sure what that meant either.  Is private law property and contract law?

The People's Welfare

I am a little confused by what Novak means when he uses the the word "liberal."  I understand on page 22 the liberal theory that the rule of law protects the people from both "the private other and the public state." (I assume that by "private other" he is referring to unregulated capitalism-feel free to correct me if I am incorrect.)  However on page 84 he refers to the "ascendancy of liberal constitutionalism and free-market economics" as if they were complementary or connected.  To my 21st century mind, free-market economics is a conservative mantra.
Likewise, back on page one, his thesis is that the existence of extensive regulation in the nineteenth century explodes the liberal (?) myth of governance during that time.  Again, I admit to being stuck in the 21st century, but that sounds like a conservative myth to me.

THe People's Welfare

Hi All- just about to start reading The People's Welfare.  In case you are looking for a complementary reading for this book for this week, I'm presenting B. Zorina Khan's article "Justice in the Marketplace": Legal Disputes and Economic Activity on America's Northeastern Frontier.  Her article provides an interesting case study of Maine from its colonial era as part of the Massachusetts Bay Colony through its statehood in 1820.  What I found interesting was that she (or he....not sure- I will look that up) argued market transactions in colonial Maine were orderly in a "pre capitalist" or even a pre-industrial America.  The courts transitioned from hearing a majority of "moral economy" cases that involved charges of, for example, fornication, to those relating to debts, property, and economic transactions.  IN contrast to other scholarly theses that the rise of job specialization and division of labor broke down community bonds and interpersonal exchanges, Khan asserted specialization of labor led to the formalization of the legal system in Maine with trained professional lawyers where the courts, which were pretty democratic, were open to people of all socio-economic statuses to file suits.  I hope this gives everyone a glimpse into Novak's book and some things to think about for Wednesday.

Have We Been Taught Marbury v. Madison Wrong?

One of the most striking parts of Kramer's The People Themselves has been his discussion of Marbury v. Madison. As someone who has taken numerous U.S. history classes and even an American legal history course in undergrad, this is the first time I was exposed to this considerably different interpretation of the significance (or lack thereof) of Marbury. It seems that Marbury is not revolutionary, but rather reactionary. Marbury did not create, much less expand, the power of judicial review (as we teach students). Instead, Marbury defended the departmental understanding of the power of judicial review against a perceived attack by politicians.

Although this is certainly a more complex understanding of Marbury, I'm upset a little upset to know that we have oversimplified this case to such a degree. It gets included with landmark decisions like Brown v. Board of Education and Roe v. Wade, when it is really on the same level of significance (at least in my mind).

Emory Law's 2013 LAWS Annual Conference

This was just brought to my attention today, but I thought I'd share this in case anyone else was interested.

This Saturday, February 16th, is Emory's 2013 LAWS Annual Conference, and the topic is "The Changing Face of Reproductive Privacy."

It's free to attend, but you need to register in advance if you want to attend the lunch and the keynote presentation, which is going to be given by Sarah Weddington, the lead attorney who represented Roe in Roe v. Wade.

http://www.law.emory.edu/academics/conferences/2013-laws-annual-conference.html

Teaching the People Themselves

The past two weeks of reading provided a more complex understanding of American government and the Constitution.  In class, a couple of the current teachers said that this would change how they taught these topics.  As a prospective teacher (in high school), I am wondering how we can best incoporate Origianl Meanings and The People Themselves in the classroom.  Are these in depth discussions best suited for the college classroom?

The People Themselves

I just want to make sure that I understand the concept and definition of "Popular Constitutionalism."  As I understand it, it is the concept that the people, either directly or through their elected legislatures, have the final authority to interpret the constitutional or Fundemental law and not the courts.  Also the term elected legislatures could mean either federal or state bodies which would open the door to state nullification.  This of course is the opposite of Judicial Review.  Am I on the right track?
Jim

The People Themselves

I'm just wondering if I'm reading The People Themselves correctly- Kramer is arguing within his history of judicial review and popular constitutionalism that the people have given up their power of being the ultimate interpreters/enforcers of the Constitution as the courts have gained that power (judicial supremacy)?

Question: Federalism and Original Meaning

I thought it might be good to interject with a question. Federalism and judicial review are the two "great questions" of American constitutionalism. How did we get the supremacy clause? How are the boundaries between the state and the federal government supposed to be regulated? How did the Federalists' defense of the finished product differ from the Convention discussions?

Jack Rakove Interview

This is an interesting interview with Dr. Rakove.  He discusses what he believes are the most important contributions Original Meanings makes to the field.

Enjoy!

http://www.earlyamerica.com/review/1998/rakove.html

Akil Reed Amar

As people are working through our assigned readings this week I would suggest looking at Amar's book listed under the Further Readings.  I've used this text for several papers and found Amar's explanations and definitions to be useful.  The book is widely available at libraries, including the Atlanta-Fulton libraries (and if you don't live in Fulton county you can still use the system as a GSU student).  I've also found a link for a PDF of a followup called "America's Unwritten Constitution" from USC's website.
 http://lawweb.usc.edu/who/faculty/workshops/documents/Amarspaper.pdf