Omohundro Institute of Early American History and Culture

Uncommon Sense—the blog

Friends in All the Right Places: The Newest Legal History

· October 8th, 2019 · 1 Comment

Today’s post accompanies “American Legal History and the Bill of Rights,” episode 259 of Ben Franklin’s World and part of Doing History 4: Understanding the Fourth Amendment.

By Gautham Rao

In 1965 a lawyer named Malcolm S. Mason wrote an article for the Journal of Legal Education with a simple problem: legal history was boring. For Mason, who had studied with famed legal historian Julius Goebel, Jr., legal history mattered because knowledge of the past would enrich the practice of law in the present. But legal history was simply too dry to catch the interest of the young lawyer. The really old stuff was bad enough. But even more recent events such as the New Deal’s administrative revolution had quickly became “old, weary, stodgy,” and “routine.” Mason died in 2011 at the age of 101 after a career at the highest levels of federal administrative law. I wish I could have spoken to him about his article because I think he would have been thrilled and horrified at the world of legal history today—at once more public facing as historians use the law to advocate in the present, and at once rescued from the exclusive service of the legal profession.[1]

More than ever before, legal historians are actively engaged in using the past to support normative positions about contemporary law and politics. The proliferation of historians’ amicus or friend of the court briefs in appellate cases is perhaps the best example of this. Of course, as Sam Erman and Nathan Perl-Rosenthal have recently explained, historians’ amicus briefs have a long and distinguished history dating back to the mid-twentieth century. But “historians’ amicus briefs have proliferated in the decade and a half since 2001: between 2006 and 2012, historians presented over thirty to the Supreme Court alone.”[2]

When I began graduate school I never imagined that my historiographical knowledge would ever be useful for present-day concerns. But I have coauthored (with Jed Shugerman, Jack Rakove, Simon Stern, and John Mikhail) an amicus brief for recent cases about President Donald J. Trump’s possible violations of the Foreign Emoluments Clause of the United States Constitution. I did so because I believe that the founders of the republic created a constitutional restriction that prevents the President of the United States from accepting emoluments from foreign governments because of the dangers of corruption. Many of my colleagues in history departments and law schools throughout the world have felt similarly about this and other legal and constitutional questions. Through the amicus brief, legal historians seek to communicate their expertise to the wider world. As Kenneth W. Mack wonders, though, “whether, and to what extent, the world actually listens is not entirely within our control.”[3]

While legal historians have found that their research is applicable to today’s legal debates, legal history has dramatically moved in new and exciting directions to such an extent that it is barely recognizable from the time when Mason wrote his impassioned plea. As the kids might put it: broke—legal doctrine; woke—state, culture, and society. This is of course unfair and hyperbolic! Scholars continue to write terrific articles about the history of legal doctrine and jurisprudence, such as the resurgence of interest in the Erie doctrine. But where the venue of most legal history was once the bench and bar, it is now scattered widely in bureaus, corporations, homes, ships, and many other places. And runaway slaves, merchants, administrators, printers, political economists, and other diverse actors have supplanted the great judges of yesteryear as the protagonists of legal histories. Consider for example the past few winners of the American Society for Legal History’s Cromwell Prize for best dissertation: Allison Powers Useche, who wrote about colonial subjects’ use of international law to contest American imperialism; Maeve Glass, who wrote about slavery, political economy, and the state; Suzanne Kahn, who wrote about divorce and the American state; Sarah Levine-Gronningsater, who wrote about black legal culture in eighteenth and nineteenth-century New York. In the journal I edit, Law and History Review, we have published (by my count) at least twelve articles or book reviews concerning the enslaved’s use of “freedom suits” to seek freedom in Brazil, the United States, and elsewhere.

Perhaps the diversification of the subject matter of legal history is a by-product of the fact that legal history, which had always thrived in the legal academy, is now flourishing in history departments. While most departments do not have a “legal historian,” and while many departments do not offer courses entitled “legal history,” a great many have faculty members whose research is in dialogue with main themes in legal historiography. Some years ago I tried putting together a list of representative examples. But suffice it to say that at the upcoming annual meeting of the American Society for Legal History in Boston, most of the names of the program are from history departments, not from law schools. By my deeply unscientific count, the program lists 269 participants from history departments, 96 from law schools, and 9 from government agencies or private research centers.

Some years ago, two great legal historians sat down in a room at the University of Wisconsin Law School and had a great conversation that they later published. Barbara Welke asked brilliant questions of Hendrik Hartog and Hartog answered with his characteristic wit and intellect. I’ve frequently come back to one of Hartog’s answers: “I think what makes a legal historian a legal historian might be nothing more than the difference between assuming that law is a window and assuming that you have to understand the window as an artifact and as having a shaping effect on what you see through it. Legal historians are curious about the windows.” If Hartog is right, and it should be clear that I think he is, then legal historians in history departments and law schools are constantly at work uncovering new and potentially important windows.

Malcolm Mason may not have liked these windows very much. But whatever legal history is these days, it certainly isn’t boring.

Gautham Rao is Associate Professor of History at American University and Editor-in-Chief of Law and History Review. He is currently working on a book project about runaway slave laws and their legacies in American history.

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[1] Malcolm S. Mason, “On Teaching Legal History Backwards,” Journal of Legal Education 18, no. 2 (1965), 155, 159.

[2] Sam Erman and Nathan Perl-Rosenthal, “Historians’ Amicus Briefs: Practice and Prospect,” Oxford Handbooks Online, DOI: 10.1093/oxfordhb/9780198794356.013.60

[3] Tomiko Brown-Nagin, Linda Gordon, and Kenneth W. Mack, “Historians in Court: A Roundtable,” The American Historian, November, 2017.

[4] See, Edward Purcell, Jr., Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (New Haven: Yale University Press, 2000); Adam N. Steinman, “What is the Erie Doctrine—(and what does it mean for the Contemporary Politics of Judicial Federalism)?” Notre Dame Law Review 84 (2013), 245-330; Diane P. Wood, “Back to the Basics of Erie,” Lewis and Clark Law Review 18 (2014), 673-95; and Bryan L. Frye, “The Ballad of Harry James Tompkins,” Akron Law Review 52 (2019), 532-605.

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