The Malleability of “the Law”

Steven Cromack

Are Supreme Court decisions important? Most intellectuals, lawyers, teachers, professors, and anyone with an eighth grade education would exasperatedly answer, “Of course! What a stupid question.” The Supreme Court hands down “The Law of the Land.” In Dred Scott v. Sanford (1857), the Supreme Court fueled the tension between North and South over the fugitive slave law. The decision Minor v. Happersett (1875) posited that women are citizens, but citizenship does not mean suffrage. Brown vs. the Board of Education (1954) declared segregation in American public schools unconstitutional. Finally, Citizens United vs. Federal Election Commission (2010) opened the floodgates for political contributions and significantly changed the nature of American politics. These cases have an important impact on our society—increasing tension (and even war) between the branches, parties, regions, and social classes—or, have they?

The fundamental question lurking below the surface is: Are these decisions truly that significant in themselves, or is their significance historically constructed? In other words, are Supreme Court decisions an end in themselves, or are they a means to an end crafted not by the Court, but by historians, lawyers, academics, or historical figures seeking to advance their own agendas? In studying the “history” of such decisions, and how intellectuals and public figures use them for their own purposes, one arrives at the uncomfortable notion that the law is malleable for those who choose to pursue a political agenda.

2003 was the bicentennial of Marbury v. Madison (1803), the fundamental Supreme Court case that set in motion “judicial review” and established the legitimacy of the Court. Or so Constitutional Scholars tell us. In an article titled “The Rhetorical Uses of Marbury v. Madison: The Emergence of a ‘Great Case,’” the Dean of William and Mary and Professor of Law, Davison Davis tracked the evolution of the decision and pointed out that “between 1803 and 1887, the Court never once cited Marbury for the proposition of judicial review (376).” How is it that such a “landmark case” was not mentioned or invoked by the nineteenth-century Court?

Davis contended that when the Court struck down the income tax as unconstitutional in Pollock v. Farmer’s Loan & Trust Co. (1895), only then did defenders of the Court’s decision make Marbury relevant. Davis wrote, “In the struggle to defend the Court’s actions, judicial review enthusiasts elevated the Marbury decision—and Chief Justice Marshall—to icon status to fend off attacks that the Court had acted in an unwarranted fashion (377).” Davis then goes on to outline how politicians, populists, and other figures trashed the Court’s decision, and also how the Warren Court used Marbury as a shield against segregationists and as a sword to assert its power (409). Thus, the Marbury decision was not an end in itself, but a means to end.

It is common knowledge that the Plessy v. Ferguson (1896) decision espoused the “separate, but equal” doctrine. American history textbooks, law books, and historians overwhelmingly cite it as a landmark decision. On May 19, 1896, the day following the decision, The New York Times, the nation’s leading paper, reported of this monumental case, “No. 210 Homer Adolph Plessy vs. J.H. Ferguson, Judge & c- In error to the Supreme Court of Louisiana. Judgment affirmed, with costs.” For those living at the time, the Plessy decision was not that important. The South did not use the Court’s decision to implement Jim Crow. Nor did the decision legalize the Jim Crow laws. Jim Crow came long before the 1896 decision. The New York Times did not mention the case again until the 1950s, when Brown v. the Board of Education (1954) was making its way through the courts.

If one examines the history and evolution of a Supreme Court decision, one finds that decisions in themselves are not ends, but instead, a means to an end for others not on the Court. This is evident in examining the context of our major court cases and tracking their usage across time. Historians, from generation to generation, construct, tear down, and then reconstruct a narrative. While “deconstruction” has had its moment in the sun, it nevertheless has some validity for history: the narrative changes from generation to generation with those who interpret the past. If history is malleable, then the law is malleable, and that is a scary concept.

Jesse James and Anwar al-Awlaki

Heather Cox Richardson

There has been a great deal of debate over whether or not it was legal for the Obama administration to order the September 30 killing of Anwar al-Awlaki. It seems unlikely to go far in the realm of political discussion, since al-Awlaki was not on American soil, and since few Americans seem to have digested the fact that, although he had a foreign name and was clearly implicated in major terrorist attacks on the United States, al-Awlaki was born in America and was thus an American citizen.

A similar question did, though, roil American politics in the 1880s: should the government be able to order the assassination of an American citizen? Then, unlike now, it was discussed on both sides of the political divide as a principled question of executive power and the rights of citizens.

The targeted citizen, in that case, was Jesse James.

James had fought for the Confederacy as one of Quantrill’s Raiders in Missouri. These men were so hated by the pro-Union Missourians that, when the end of the war permitted most Confederate soldiers to go home in peace, Unionists refused to acknowledge the Raiders as Confederate soldiers. Someone put a bullet in Jesse as he made his way home from the fighting.

For their part, James and his buddies were not cheerfully reconstructed ex-Confederates. They survived by robbing trains, banks, and express companies, all of which were associated after the Civil War with the Republican federal government. But James insisted that he was not a criminal; he had been forced outside the law by the government itself. After the war, ex-Confederate Democrats in Missouri could not vote, sit on juries, work as lawyers, or hold government offices. James maintained that the true perpetrators of the crimes for which he was blamed were Republicans. In his view, state laws barring Democrats from access to legal protection, juries, and offices guaranteed that he could never get a fair hearing. According to a sympathetic biographer (he referred to Jesse as “an angel of light”), their manhood forced men like James to “turn upon that law that hounded them and that society that hunted them, and outrage and defy it.”

Missouri officials had no luck bringing James to justice. Neither did Pinkerton detectives, hired by angry express company owners. (The James Gang robbed stagecoaches, banks, and trains and committing a host of murders along the way.) Finally, in desperation, the Missouri governor, T. T. Crittenden, persuaded a member of James’s own gang to murder him. Bob Ford shot James as he straightened a picture on the wall. When Ford and his brother pled guilty to the murder and were sentenced to death, the governor promptly pardoned them and paid them the bounty he had placed on James’s head.

Predictably, Democrats were outraged by the prospect of an elected Republican official arranging for the murder of a Democrat. But many Republicans were also unsettled. Crittenden had “hired an assassin” as if he were a potentate, one Republican newspaper editor wrote. Popular opinion swung quickly to an acknowledgement that James was a criminal, and even rejoiced that he was out of commission, but rejected entirely the idea that government officials should have the power to ignore legal processes and simply murder their domestic enemies. James’s portrayal as a man persecuted by the government made him a popular hero.

While any parallels should not be pushed too far, James’s situation was not unlike that of al-Awlaki. Both appear to have been criminals who protested a government that would not acknowledge their grievances. At the same time, al-Awlaki’s case raises questions the James case did not, questions, for example, about the nature of war powers during times of undeclared war, and how international terrorism should affect Constitutional rights. These are not unimportant issues. It’s too bad that they will most likely not get the bipartisan public airing they need in the wake of al-Awlaki’s death, the same public debate that followed Jesse James’s assassination.

The Conspirator Roundup

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The Conspirator, a 2011 film about the plot to kill president Lincoln, is now out on DVD and Blu-ray.

Peter Rainer, "The Conspirator: movie review," Christian Science Monitor, April 15, 2011

Robert Redford’s workmanlike “The Conspirator” is about Mary Surratt (Robin Wright), a Confederate sympathizer who was

executed for her complicity, which she denied, in the plot to assassinate Abraham Lincoln. Tried in a military court as a civilian along with eight other alleged conspirators, she became the first woman to be executed by the United States federal government.>>>

Anthony Lane, "Casualties of War," New Yorker, April 18, 2011

Of the many questions posed by “The Conspirator,” and left unresolved, the most pressing are these: How much did Mary Surratt (Robin Wright) know of the plot to kill Abraham Lincoln? How could she not have known of it, given that some of it was hatched within the respectable boarding house that she ran in Washington, D.C.? If her son John (Johnny Simmons), who certainly did know of the plot, had surrendered to the authorities, rather than remaining on the run, could he have saved his mother’s skin? Why did Andrew Johnson, the new President, reject the last-minute, late-night application by Surratt’s lawyer for a retrial? And was there ever any likelihood, considering the public revulsion at the murder, that she would receive a fair trial in the first place?>>>

Jason Solomons, "The Conspirator – review," Guardian, July 2, 2011

Almost by decree, British actor Tom Wilkinson turns up in mutton chops to play an American senator in Robert Redford's starchy period piece The Conspirator. Has Tom pinched those whiskers from the Hollywood props cupboard, forcing studios to cast him in every historical movie just so they might wrench them back off him during make-up? He's clearly too quick for them. I swear Tom Conti did a similar thing and nicked the FilmFour moustache back in the 1980s. He never gave it back either – he just secretly handed it on to Alfred Molina. I hear the 'tache now lives in Malibu and has its own agent.>>>

Rex Reed, "Movie Review: The Conspirator is Redford’s Best Film in Decades," New York Observer, April 12, 2011

As an iconic actor, conscientious director and liberal political activist, Robert Redford loves history lessons. Everybody knew about white-collar crime in the White House during Watergate, but nobody knew anything about the two reporters who exposed the story until Mr. Redford and Dustin Hoffman played them in All the President’s Men, in the interests of the great profession of journalism. In The Conspirator, Robert Redford the director addresses another footnote to American history that’s left out of textbooks: the little-known story of Mary Surratt, an innocent woman caught up in the U.S. government witch hunt following the assassination of President Abraham Lincoln. It’s an exhaustively researched, brilliantly scripted, carefully made film that cautiously avoids preachy propaganda of yesteryear, while unavoidably reflecting the similar anxiety, tension and fear of a polarized nation today. What goes around, Mr. Redford seems to be saying, comes around.>>>

Morris L. Cohen Student Essay Competition

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The Legal History and Rare Books Section (LH&RB) of the American Association of Law Libraries, in cooperation with Cengage Learning, announces the third annual Morris L. Cohen Student Essay Competition.

The competition is named in honor of Morris L. Cohen, late Professor Emeritus of Law at Yale Law School. Professor Cohen was a leading scholar in the fields of legal research, rare books, and historical bibliography.

The purpose of the competition is to encourage scholarship in the areas of legal history, rare law books, and legal archives, and to acquaint students with the American Association of Law Libraries (AALL) and law librarianship.

Eligibility

Students currently enrolled in accredited graduate programs in library science, law, history, or related fields are eligible to enter the competition. Both full- and part-time students are eligible. Membership in AALL is not required.

Requirements

Essays may be on any topic related to legal history, rare law books, or legal archives. The entry form and instructions are available at the LH&RB website: http://www.aallnet.org/sis/lhrb/

Entries must be submitted by 11:59 p.m., March 15, 2011. The winner will be announced by April 15.

Awards

The winner will receive a $500.00 prize from Cengage Learning and up to $1,000 for expenses associated with attendance at the AALL Annual Meeting.

The runner-up will have the opportunity to publish the second-place essay in LH&RB’s online scholarly journal Unbound: An Annual Review of Legal History and Rare Books.

Please direct questions to Robert Mead at libram@nmcourts.gov or Sarah Yates at yates006@tc.umn.edu.

History Book Reviews Reviewed, July/August 2010 edition

Chris Beneke

What follows is the first installment of a semi-regular update on historical reviews in the London Review of Books, The New Republic, The New York Review of Books, and other places that we bothered to look.

Jeffrey Rosen, “Why Brandeis Matters: The Constitution and the Crash” (TNR, July 22) Review of Melvin I. Urofsky, Louis D. Brandeis: A Life (Pantheon)

Writing admiringly of both book and subject, Rosen says that Urofsky’s “definitive,” “masterful” biography of the great supreme court justice is timely given Elena Kagan’s nomination to Brandeis’s Supreme Court seat and the rediscovery by progressives of “the virtues of judicial restraint.” Rosen is confident that Brandeis “would have predicted the crash of 2008.” (The bearish justice would have no doubt still preferred bonds, as he did in the 1920s, rather than credit default swaps on mortgage backed securities.) Rosen details Brandeis’s long-standing critique of concentrated financial power (“the curse of bigness”), his commitment to judicial restraint on most matters but “judicial vigilance” on the especially urgent matter of civil liberties, and his support for Zionism as both a complement to nationalism and a source of intra-national cultural vitality. The 2008 financial crisis figures centrally in this piece and Rosen builds on a distinction of Paul Krugman’s, positing the existence of two historically-informed schools of thought on financial reform: “the Jeffersonian-Brandeisians, who want to break up the big banks and prevent them from engaging in risky behavior, and the Hamiltonian neo-New Dealers, who prefer top-down government regulation.” Rosen suggests that the Jeffersonian-Brandeisians (like Paul Volcker) have gotten it right, but the Hamiltonian-New Dealers (like Lawrence Summers and Timothy Geithner) have gotten the votes. Urofsky’s biography is itself quite big. Given its hefty 955 page count, you might want to read Rosen’s longish review before taking the plunge. Or maybe even wait for Rosen’s own forthcoming book on Brandeis.

Anthony Grafton, “A Jewel of a Thousand Facets” (NYRB, June 24) Review of Lynn Hunt, Margaret C. Jacob, and Wijnand Mijnhardt, The Book That Changed Europe: Picart and Bernard’s Religious Ceremonies of the World (Belknap/Harvard); and, Hunt, Jacob, and Mijnhardt, eds., Bernard Picart and the First Global Vision of Religion (Getty Research Institute)

The two books reviewed here might be a good complement to Stephen Prothero’s hot-selling God is Not One (not mentioned by Grafton). Prothero’s conclusion that the world’s religion’s do not much converge is today’s contrarian position. That wasn’t the case in Bernard and Picart’s time. Grafton observes that the emphasis on the similarity of the world’s faiths was a subversive stance in the late seventeenth and early eighteenth centuries. Also subversive in that period: dense, weighty compilations of global knowledge like Religious Ceremonies of the World, and chatty, “ironic” footnote commentary on “orthodox inanities.” By detailing (in both print and image) the nuances of religions across the globe and by comparing the common forces underlying their different practices, Bernard and Picart injected sociological and anthropological substance into enlightened appeals for toleration. Though wondering what contemporary readers thought of Bernard and Picart’s Religious Ceremonies, Grafton is impressed by the collaborative, interdisciplinary effort that went into this two-volume project. He concludes that the authors “have done justice to a great work of eighteenth-century humanistic learning. And they have shown us some of the directions in which humanistic scholarship should move in generations to come: not only away from older narratives of intellectual change, but toward new models in which books and digital media, grand accounts and detailed inquiries shed light on one another.”

Bee Wilson, “Stuck with Your Own Face” (LRB, July 8) Review of Geoffrey Jones, Beauty Imagined: A History of the Global Beauty Industry (Oxford)

Beauty trends may rise and fall, but the beauty industry only rises. In 1916, roughly “four fifths of Americans used neither toothpaste nor shampoo, never mind mosturiser or deodorant, lipstick or hair gel.” Today, “[c]onsumers around the world spend ‘$330 billion a year on fragrances, cosmetics and toiletries’.” Scent was the first sense to be addressed by the broadly conceived category of beauty products. Salvaging the body from early modern street odors was not an easy job. Perfume helped. By the mid-nineteenth century, this early beauty product was sold in mass, factory-produced quantities, along with “‘the first factory-made, non-toxic mascara’.” Over time, manufacturers moved away from beauty products that poisoned their users and toward products adapted to the visual revelations of electric light. They also went global with products, such as skin-lightening creams, that changed or reinforced prevailing conceptions of race and personal attractiveness. The greatest of the beauty industry’s innovations, according to Wilson, may have been lipstick. It’s legitimation “over just a few decades [in the twentieth century] must have brought about one of the biggest changes to the appearance of the Western female body in history.” Wilson is generally pleased with the data that Jones offers. She is less impressed with his grasp of the “artifice” that has gone into the sale of these high-margin products with often questionable claims to effectiveness.