Lederman on The Law (?) of the Lincoln Assassination

Martin Lederman, Georgetown University Law Center, has published The Law (?) of the Lincoln Assassination in Scholarship @ GEORGETOWN LAW, 2016. Here is the abstract.

Shortly after John Wilkes Booth killed Abraham Lincoln, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theater. Johnson’s decision implicated a fundamental constitutional question that had been a source of heated debate throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury, with an independent, tenure-protected judge presiding, by trying individuals other than members of the armed forces in a military tribunal? This Article III question has been debated in several of the nation’s major wars, yet remains unresolved, particularly with respect to the trial of domestic-law offenses. Moreover, that question is especially significant in the United States’ current armed conflicts against nonstate terrorist organizations, such as al Qaeda, both because members of such enemy forces, who lack international law “combatant immunity,” often violate U.S. criminal laws, and because Congress has recently authorized military commissions to try such enemy forces for certain domestic-law, war-related offenses. In attempting to justify the constitutionality of such military trials, the government has, perhaps surprisingly, turned to the Lincoln assassination commission as a leading precedent, one that arguably helps to establish a longstanding political branch practice that should inform constitutional understandings. Such reliance on the Lincoln trial as legal authority is understandable, because that proceeding was, in Judge Kavanaugh’s words, “the highest-profile and most important U.S. military commission precedent in American history,” and thus it would be striking — indeed, a significant constitutional embarrassment — to conclude that the trial and convictions of the Lincoln conspirators were unlawful. As I demonstrate in this article, however, such respect for the Lincoln assassination trial as a canonical constitutional precedent would itself be historically anomalous. For almost 150 years it was virtually unthinkable for anyone to rely upon that proceeding as venerated legal authority: as one knowledgeable observer wrote, the Lincoln trial was a case of military jurisdiction that “no self-respecting military lawyer [would] look straight in the eye.” This article offers the first comprehensive account of the ways in which the Article III question was contested during and immediately after the Civil War, with particular attention to the Lincoln assassination trial. The article also carefully examines the place of the Lincoln trial in the national constitutional discourse after 1868 — the ways in which that proceeding, and other Civil War military trials, have been accorded authority, or dismissed as nonauthoritative, by later generations. This broader historical narrative thus can help inform current academic and judicial debates about whether and under what circumstances political branch practice, especially high-profile precedents, ought to inform, or “liquidate,” the meaning or proper application of the Constitution.

Download the article from SSRN at the link.

Tomlins on Looking for Law in "The Confessions of Nat Turner"

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, is publishing Looking for Law in 'The Confessions of Nat Turner' in Looking for Law in All the Wrong Places (Marianne Constable and Leti Volpp, eds., n.p., n.d.). Here is the abstract.

From Harriet Beecher Stowe to William Styron and Sharon Ewell Foster, from Kyle Baker to Nate Parker, and others, American popular culture has found Nat Turner's "Confessions" endlessly fascinating. The fascination of course extends to historians. Particularly in recent years, scholars have dug deeply into the local history of what came to be called The Turner Rebellion. The result is a greatly enriched archive. Still, much of what is known of the event and particularly of its eponymous leader – and hence the manner of their portrayal – remains dependent on Thomas Ruffin Gray's pamphlet "Confessions." Naturally one must ask whether a hastily-written twenty page pamphlet rushed into print by an opportunistic white lawyer, down on his luck and hoping to cash in on Turner's notoriety, actually deserves to be treated as empirically reliable access to the mentalités of those engaged in planning and executing an "insurrectory movement." Should the pamphlet survive that test, a second question immediately surfaces: precisely what is it that the pamphlet evidences? This essay seeks an answer through consideration of a number of recent literary analyses of Gray's pamphlet.

Download the essay from SSRN at the link.

Meyler on the Politics of the Declaration of Independence Before the Civil War

Bernadette A. Meyler, Stanford Law School, is publishing Between the States and the Signers: The Politics of the Declaration of Independence Before the Civil War in Southern California Law Review. Here is the abstract.

It is almost impossible to conjure the thought of the Declaration of Independence today without also raising the specters of the signers. Commonplace invocations of “John Hancock” stand in for the prototypical signature, and elementary school children throughout the country learn details about the lives of the signers. The signers did not, however, authorize the Declaration solely for themselves, but rather on behalf of the “People.” At the same time as autograph collectors began accumulating the signatures of the signers of the Declaration of Independence in the early nineteenth century, the political contest over the “People” of the United States drew the Declaration into its arguments. Controversy focused, in particular, on whether this people could be considered united from the Declaration onwards or consisted in the people of the several states. Drawing on two periods when discussions of the Declaration came to the fore, this Symposium Article contends that the figure of the signers — and their signatures — became a crucial weapon in a battle over which people had authorized not only the Declaration but also the U.S. Constitution.

Download the article from SSRN at the link.

The Seccessionist Papers From the Calhoun Review

The Secessionist Papers (Barry Lee Clark et al., The Calhoun Review, 2016) is available. Here is the abstract.

Why is it important to talk about secession? Few people that believe secession is a legitimate political theory, right and recourse also believe that in a practical sense it is achievable, reasonable or even preferable. Devolution is a complicated matter and requires a more or less united political will among a people within a region or area – within the confines of modern America it seems unlikely any such will of a sufficient majority will soon emerge, anywhere. The question thus remains, why even discuss the subject? It is important to honestly discuss the matter because it goes to the very heart of how the Union of States was formed, what the Constitution was to mean and what relation the central government was to have to the people. Many of our contemporary political problems stem directly from a failure to understand foundational principles. Perhaps in engendering more honest discussions about foundational principles we might actually see contemporary problems more correctly.

This publication contains essays by Barry Lee Clark, Brian McCandliss, Walter Block, Thomas E. Woods, Kevin L. Clauson, Kirkpatrick Sale, Forrest McDonald, Gene H. Kizer, Thomas J. DiLorenzo, and Donald W. Livingston.

Does Hollywood Present a "Pro-Southern" View of the Struggle Between the Union and the Confederacy?

Eileen Jones has published The Cinematic Lost Cause, arguing that Hollywood generally presents a "pro-South" view of the Civil War. More here in her piece, published in the Jacobin.

State Constitutional Protections For Economic Rights Prior to the Civil War

James W. Ely, Jr., Vanderbilt University Law School, is publishing ‘The Sacredness of Private Property:’ State Constitutional Law and the Protection of Economic Rights Before the Civil War in the NYU Journal of Law & Liberty. Here is the abstract.

This essay explores state constitutional law before the Civil War pertaining to economic rights. It argues that antebellum state courts played a crucial and underappreciated role in defending property and contractual rights from legislative assault. Before the adoption of the Fourteenth Amendment most constitutional questions relating to property were handled in state courts and implicated state constitutional law. The essay considers how state courts shaped takings and due process jurisprudence, often anticipating subsequent decisions by the Supreme Court of the United States. They were the first, for example, to consider the scope of “public use” and the amount of “just compensation” when government sought to acquire property. Moreover, they grappled with the extent to which the due process guarantee in state constitutions conferred substantive protection to the rights of property owners. Despite the pivotal role of the Supreme Court in fashioning contract clause jurisprudence, state courts heard far more contract clause cases and significantly impacted the formation of law in this field as well. State constitutionalism was vitally important to the development of property owners.

Download the essay from SSRN at the link.

Abraham Lincoln as Constitutional Interpreter

Michael Stokes Paulsen, University of St. Thomas School of Law, has published The Great Interpreter as University of St. Thomas (Minnesota) Legal Studies Research Paper No. 15-09. Here is the abstract.

This essay examines the constitutional legacy of President Abraham Lincoln, the most important constitutional interpreter in our nation's history. The Civil War was -- in addition to so much else -- a defining act of national constitutional interpretation. The war was fought over fundamental questions of the Constitution's meaning, and over who would have final authority to determine that meaning. The most significant issues of antebellum constitutional dispute -- the present and future status of slavery; the question of who possessed constitutional power to determine that status; the nature of the "Union" and the question of whether a state lawfully could secede; matters of national-versus-state constitutional supremacy and "sovereignty" -- received their final "adjudication" not in any court of law but on the battlefields of the Civil War. It was the case of Grant v. Lee, reduced to final judgment at Appomattox Court House 150 years ago, that constituted the nation's determination of these issues, and that determined also the entire constitutional future of the United States. None of this would have happened had Lincoln not considered himself bound by his oath to advance his independent constitutional views concerning Dred Scott, slavery, Union, national constitutional supremacy, and presidential military powers -- views that frequently placed him at odds not only with the views of nearly half the nation, but often with the Supreme Court as well.

Download the paper from SSRN at the link.

Remembering the Emancipation Proclamation

Martha S. Jones, University of Michigan Law School, has published History and Commemoration: The Emancipation Proclamation at 150 at 3 Journal of the Civil War Era 452 (2013).

Marking the 150th anniversary of the Emancipation Proclamation encourages debate about the past. January 1, 1863, does not stand out as a singular event, the commemoration of which silences the past. Instead, these articles capture some of the rich albeit messy past that was the Civil War and emancipation. Recovering that process, one that included congress members, generals, soldiers, sailors, and enslaved people, resituates the Emancipation Proclamation as history rather than myth. We learn how the proclamation was related to Congress’s emancipatory legislation and how its implementation relied on the resistance of formerly enslaved insurgents. The analysis of new sources, including visual culture, means that historical interpretation will continue to evolve. Transnational approaches suggest how the proclamation’s influence was far-reaching in the realms of law and state-building. And while the season of commemoration may draw to a close, historians history and commemoration will have many opportunities to collaborate on exhibitions and films, the sorts of spaces in which confrontations between history and fiction may find a productive tension. Commemoration need not rest on silence.

The full text is not available from SSRN. 

Constitutional Compromise

The February 27, 2013 "Room For Debate" section of the New York Times is devoted to the issue of "The Constitution's Immoral Compromise" the Three-Fifths compromise in Article 1, Section 2, paragraph 3 of the US Constitution:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years and excluding Indians not taxed, three fifths of all other Persons.

Five scholars weigh in provocatively and thoughtfully on the political and moral necessary of this compromise: Paul Finkelman (Albany Law), Henry L. Chambers, Jr.,  (Richmond Law), Leslie M. Harris (Emory) Sanford Levinson (University of Texas Law), and Ray Diamond (LSU Law).

Remembering a Divided Nation

Currently at the Library of Congress, an exhibit entitled "The Civil War In America." The New York Times reviews it here.

The Lincoln Legend

John Blake of CNN reviews (and critiques) Steven Spielberg's new film "Lincoln," and suggests that the Spielberg Lincoln is not as accurate or as complex as the PBS Lincoln available in a three-part documentary which begins airing tonight. In part, says Mr. Blake, the documentary points out that Harriet Beecher Stowe, not President Lincoln, had a great part in persuading people that slavery was immoral, via her novel Uncle Tom's Cabin. Further, what fueled the enduring attraction of slavery in the South was not just twisted moral thinking on the part of its defenders, but its economic foundation. He discusses more reasons, more issues, here.

The Dred Scott Decision

David T. Hardy has published Dred Scott, John San(d)Ford, and the Case for Collusion. Here is the abstract.

Dred Scott profoundly changed American history. Intended to protect slavery, its unforeseen consequences were the election of Abraham Lincoln, the political destruction of Stephen Douglas, and the adoption of the 13th, 14th, and 15th Amendments. It was also the Court's first interpretation of freedom of speech and assembly, of the right to arms, and of substantive due process. This article explores the degree to which Dred Scott was collusive -- not in the sense of both sides desiring the same outcome, but in the sense of them manufacturing a false case which each thought they could win. The defendant was John F. A. Sanford, a New York businessman who had no claim to being the Scott family's slaveholder, but who nonetheless stipulated to being such. The real slaveholder was his sister Irene, whom the Scotts initially sued in State court. When the Federal suit was brought, her name was likely omitted, and Sanford substituted, because its known destination was the Supreme Court ... and Irene was now married to Calvin Chaffee, a member of the House of Representatives, and a prominent opponent of slavery. Immediately after the decision was handed down, the Chaffees' role was exposed by the pro-slavery press and a public relations battle ensured, ending with their arranging for the Scott family's manumission. Why the pro-slavery side would have colluded is not hard to understand: given the composition of the Court, they were the likely winners. The motive for Scott's attorneys' collusion is harder to discern. His trial court attorney seems to have thought it worth the gamble because a win would enable sidestepping of the Fugitive Slave Act, a major gain given its almost-complete due process deprivations, while a loss would do limited harm -- the attack on the Missouri Compromise and on Congressional power over slavery in the territories was not an issue at the trial court level. Scott's attorney in the Supreme Court did face that issue, but had never been informed that the defendant had no real standing in the case.

Download the paper from SSRN at the link. 

A New Book About Legal History, Race, and Identity Before the Civil War

From the University of Pennsylvania Press:

In the Shadow of the Gallows (http://www.upenn.edu/pennpress/book/14973.html) reveals how a sense of racialized culpability shaped Americans' understandings of personhood prior to the Civil War. Author Jeanine DeLombard, Associate Professor of English the University of Toronto, draws from legal, literary, and popular texts to address fundamental questions about race, responsibility, and American civic belonging.

To receive a 20% discount on orders from www.pennpress.org, enter P4R3 in the promo code field.

The Civil War and American Literature

Randall Fuller explains the effect of the Civil War on American lit in From Battlefields Rising: How the Civil War Transformed American Literature (Oxford University Press, 2010). According to a recent Boston Globe review, the author

reminds us that the 1860s featured as talented a cohort of American writers as any decade could ask for — authors now known and loved by only their last names: Whitman, Emerson, Hawthorne, Dickinson, and Melville. Fuller carefully details how these writers experienced the war in their daily routines, their family lives, and their interlocking friendships.




What this group portrait reveals is that, while the Civil War may not have led to any lasting works of literature, it had a profound impact on the most important writers of its era. The war changed what they believed and how they wrote. After the shots at Fort Sumter, the North came quickly and patriotically together — “flush’d in the face,” in Whitman’s words, “and all its veins fiercely pulsing and pounding.” But Fuller suggests that Whitman and his literary cohort soon became uncomfortable with this kind of certainty, even though they had played a large part in putting that certainty into place. America’s first generation of great writers began experimenting with new literary forms, and began questioning their most dogmatic assumptions about the morality and effects of war.

More here.

How Australia's Framers Used the U.S. Civil War

Helen Irving, University of Sydney Faculty of Law, has published Counterfactual Constitutionalism: The American Civil War and the Framing of Australia’s Constitution as Sydney Law School Research Paper No. 11/26. Here is the abstract.

Counterfactual history - the construction of imagined, fact-like scenarios arising from the alteration of antecedents and consequents in real past events - is a controversial business. Among supporters, counterfactualism is defended as serving a valuable heuristic function, and furnishing questions to drive research. But can the knowledge generated by counterfactual history have a real-world, functional application? Is it possible to use what we learn from counterfactualism, not just for future research, but to pre-empt or alter the future? Constitution-making provides us with one answer. This proposition is illustrated with a discussion of the use made of the American Civil War by the framers of Australia’s Constitution in the 1890s.

Download the paper from SSRN at the link.

Nables on Law, Literature, and the Civil War

Deak Nabers has published Victory of Law: The Fourteenth Amendment, the Civil War, and American Literature, 1852--1867 (J. Hopkins, 2006) .

From the book description:

In Victory of Law, Deak Nabers examines developing ideas about the nature of law as reflected in literary and political writing before, during, and after the American Civil War. Nabers traces the evolution of antislavery thought from its pre-war opposition to the constitutional order of the young nation to its ultimate elevation of the U.S. Constitution as an expression of the ideal of justice -- an ideal embodied in the Fourteenth Amendment.

Nabers shows how the intellectual history of the Fourteenth Amendment was rooted in literary sources -- including Herman Melville's Battle-Pieces, Harriet Beecher Stowe's Uncle Tom's Cabin, and William Wells Brown's Clotel -- as well as in legal texts such as Somerset v. Stewart, Dred Scott v. Sandford, and Charles Sumner's "Freedom National" address. Not only were prominent writers like Ralph Waldo Emerson and Frederick Douglass instrumental in remapping the relations between law and freedom, but figures like Sumner and John Bingham helped develop a systematic antislavery reading of the Constitution which established literary texts as sources for legal authority.

This interdisciplinary study sheds light on the transformative significance of emerging legalist and constitutionalist forms of antislavery thinking on the literature of the 1850s and 1860s and the growing centrality of aesthetic considerations to antebellum American legal theory and practice -- the historical terms in which a distinctively American cultural identity was conceived.