Reuel Schiller

Can you imagine a better-timed piece of legal history than Alma Steingart’s insightful One Person, One Vote? The Gap between Representative Equity and Mathematical Equality after Baker v. Carr”? Published in the March 2026 issue of the Journal of American History, the article landed amidst a frenetic tit for tat of partisan and racial gerrymandering. In August 2025, President Trump demanded that Texas redraw its congressional districts to help keep a Republican majority in the House of Representatives in anticipation of Democratic successes in the 2026 midterms. Republican-dominated legislatures in Missouri, Ohio, and North Carolina followed suit, only to have California and Virginia respond with pro-Democratic gerrymanders, the last of these occurring just weeks after Steingart’s article appeared. Then, the courts got busy. Virginia’s Supreme Court overturned that state’s redistricting, and, most significantly, at the end of April 2026, the United States Supreme Court decided Louisiana v. Callais, eviscerating section 2 of the Voting Rights Act. This set off another burst of redistricting as Republican-controlled state legislatures carved up Democratic-leaning majority-minority districts to further boost their party’s chances in November.

Professor Steingart’s article can’t tell us how to end this grotesque carnival of democratic back-sliding, but it does a fantastic job of explaining how we got here. At the same time, it complicates the conventional narrative of the Warren Court’s landmark malapportionment cases. I’m sure that Jotwell’s readers are familiar with the fight over the justiciability of malapportionment claims in Baker v. Carr (1962) and the emergence of the “one person, one vote” standard that required legislative districts to contain roughly equal populations in Reynolds v. Sims (1964). These cases are often portrayed as the apex of legal liberalism. Earl Warren famously identified them as the Court’s greatest accomplishment during his time as Chief Justice. In the conventional narrative, which focused on the Court’s commitment to political equality and participatory democracy, they were emblematic of legal liberalism’s aspirations for an inclusive, egalitarian society. Steingart shows, however, that this account misses a crucial attribute of these cases. Their most significant legacy, Steingart argues, is that they set the parameters of the debate “about the meaning of representation in a distinctly mathematical idiom” that remains with us today. (P. 703.) Cases that seemed to be about political inclusion turned out to be ones that elevated mathematical reasoning over the facilitation of genuine political participation.

Steingart demonstrates this by focusing our attention away from the best-known opinions in Baker, Justice Brennan’s majority opinion and Justice Frankfurter’s dissent. Instead, she suggests that the foundational opinions for the voting rights cases that would emerge from Baker were Justice Clark’s concurrence and Justice Harlan’s dissent. Clark, “equat[ing] mathematics with rationality,” created a formula to calculate each voting district’s “total representation” and determined that the state’s apportionment plan failed the rational basis test required by the equal protection clause. (P. 708.) Harlan, on the other hand, rejected Clark’s “’facile mathematical argument.’” (P. 709.) He demonstrated how malleable mathematical approaches could be, and suggested that mathematical reasoning could not encompass the full range of values that might inform legitimate apportionment decisions. When, two years after Baker, the Court refined its malapportionment doctrine in Reynolds, it seemed to endorse a mathematical approach.  The principle of “one person, one vote” was designed to ensure that districts would be of the same size so that voters’ votes were weighed equally. Under this principle, the Court asserted, determining the constitutionality of an apportionment plan was “‘easily demonstrable mathematically.’” (P. 711.) The proper use of mathematical reasoning would lead to objectively fair, equitable districts.

Reynolds, as it turned out, did not immediately guarantee the primacy of mathematical evidence in voting rights cases. After her discussion of Baker and Reynolds, Steingart takes her readers through several voting rights cases involving weighted voting, multimember districts, and allegations of racial vote dilution. In each of these cases, she demonstrates that litigants and judges debated the utility of quantitative evidence in voting rights cases: Did statistical models improperly displace other values that should be part of districting decisions? If mathematical analysis was used in these cases, should it be used to determine only formal disparities in representation (is my vote equal to that of a voter in a neighboring district) or whether a person’s vote is actually effective (does a districting plan allow voters to “elect legislators of their choice,” particularly in instances where districts diluted the votes of racial minorities)? (P. 722.)

By the early 1970s, however, the “mathematical arms race” was on. (P.723.)  As voting rights cases came to turn increasingly on the effectiveness of a given vote, proof became more mathematically and statistically complicated. The increasing power of computers only furthered this trend. Courts continued to insist on districts of similar sizes, but increasingly sophisticated technology, statistical methods, and mathematical theories allowed for drawing districts with such numerical, demographic, and partisan detail that, ironically, the ultimate result of the introduction of mathematical techniques into the voting rights jurisprudence was to facilitate the types of precision gerrymandering that currently bedevil us.

This dismaying point is not, however, Steingart’s main analytic move. Instead, she makes a deeper argument about the relationship between math, politics, and law. Advocates and judges often reached for mathematical solutions in voting cases as an attempt to give objective content to the idea of equality. Yet, Steingart convincingly demonstrates that, in the realm of public policy, math and politics are inseparable — “the political and the mathematical are mutually constitutive.” (P. 705.) She makes this argument so convincingly because she is a gifted translator of mathematical concepts into language that can be easily understood, even by people whose mathematical training ended disastrously in freshman-year calculus.¹ She shows us exactly how mathematical arguments were used or rejected. She then demonstrates how different uses of mathematics determined outcomes in different cases, and ultimately defined the parameters of legal regulation in this crucial area of public policy. Because of its veneer of objectivity, mathematical analysis slipped back and forth between its use “as a descriptive tool and its use as a normative tool.” (P. 725.) In doing so, it shaped voting rights law in a manner that obscured, or at least rationalized, its policy content. Math gives us definitions of equality that seem sound, but are less than fair when implemented in the real world.

Steingart also has a lesson for intellectual historians of postwar America. She shows why discussions of the intellectual history of this period should include an examination of developments in mathematical, scientific, and technological thinking.  Some scholars, such as Fred Turner, have started down this path,² but Steingart’s granular description of the way mathematical reasoning impacted law and politics is pathbreaking.  It intersects with some of the pervasive themes that other historians have examined – the rise of participatory democracy and the increasing suspicion of expertise during the 1960s, for example. However, it does so in a manner that raises fascinating questions about the existing literature. The cases she describes illustrate battles over the use of expert, technical knowledge. Yet the forms of expertise she discusses – math and technology – are often ignored by intellectual historians. They also seem to have had more resilience in the face of rising suspicion of experts than many other domains of knowledge. Steingart’s article suggests that it would be worth exploring the sources of this resilience.

All of these themes – the unintended consequences of mathematical reasoning in voting rights cases, the hidden intermixing of policy and technology in these cases, and the curious resistance of mathematical expertise to critique — are vividly illustrated in the Supreme Court’s latest voting rights decision, Louisiana v. Callais.³ Justice Alito’s opinion uses technology to set up a de facto evidentiary standard for proving that a redistricting plan discriminates based on race. A voting rights plaintiff must “disentangle” impermissible racial gerrymandering from permissible political gerrymandering.⁴ In a world where districts are “produced by computer, as is generally the case today,” racial discrimination must be proven algorithmically.⁵ The state generates maps based on an algorithm containing its preferred districting criteria. The plaintiff must then prove discrimination by generating a map that satisfies all the same criteria but also creates a majority-minority district. Although Alito does not say it explicitly, this technological method of proof is now essentially the only way to prove a violation of the Voting Rights Act. After all, voting rights “litigants almost always have the wherewithal to proffer such a map if there is one to be found.”⁶

The Court has thus once again used a technique that Steingart so compellingly demonstrates is baked into the DNA of American voting rights jurisprudence. Proof by math and technology eclipses the reality of how voting works. Gone is a discussion of racial bloc voting. Gone is any mention of why partisan gerrymanders sit on a foundation of racial discrimination. Gone is any inquiry into the actual intent of legislators whose claim that they redrew districts for partisan reasons may be indistinguishable from racial animus absent non-algorithmic methods of proof. The criteria we use to draw voting districts reflect, and have always reflected, policy preferences. What Steingart’s fantastic article shows us is that, too often, these preferences have been hidden by a curtain of false mathematical and technological objectivity. While the Court has not learned this lesson (or willfully refuses to acknowledge it), Steingart’s scholarship pulls down this curtain. We can only hope that her work will allow for a candid acknowledgement of the political impact of math and technology as we eventually reconstruct this area of law and policy in a manner that promotes and protects a fully functional democratic system of government.

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Allison Brownell Tirres

The fact that Black Americans played a pivotal role in the formation and adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments would not come as a surprise to historians of the Reconstruction period working today. Scholars ranging from W.E.B. DuBois to Eric Foner to Kate Masur, and many in between, have painted a rich picture of the activism and engagement of enslaved and formerly enslaved persons and free Blacks, who participated directly in the meaning-making of the Second Founding.

Unfortunately, this remarkable history goes largely unacknowledged by contemporary legal scholars and jurists, including some of those on the Supreme Court. It is this gap between historical reality and jurisprudential attention that David H. Gans seeks to close in his forthcoming article Forgotten Framers: Black Conventions and the Second Founding.

Gans argues that we cannot understand the meaning of the Reconstruction amendments without taking into account their full history, which includes the particular and specific vision of equal citizenship crafted by Black activists and reformers. As Gans demonstrates, any proponent of understanding the Constitution based on “original public meaning” must take account of the role that Black Americans played in the meaning-making.

Forgotten Framers draws from a rich trove of records of speeches, debates, petitions, and declarations from a relevant sample of the dozens of Black conventions held between 1864 and 1869. These convenings ranged in size and focus, from large national conventions with several hundred attendees to smaller state and local gatherings, but all were concerned in one way or another with charting the way forward in the Black freedom struggle. Attendees and speakers included those who already had national prominence in the abolition movement, such as Frederick Douglass and John Mercer Langston, as well as those who were complete newcomers to political activism. Delegates included hundreds of recently emancipated persons who, for the first time, had the chance to speak freely and openly in support of their rights. The level and range of participation was unprecedented. As the proceedings of the Georgia Freedman’s Convention of 1866 remarked, “[w]ho one year ago would have thought that the slaves of the Empire State, in the short space of twelve months, would have the right to assemble in convention and deliberate like their masters,” including demanding that “they must have [the]ir rights according to them if peace and prosperity as the desire in the future.” (27)

The proliferation of Black activism in this period and its expression at these conventions gives Gans a wealth of material, enabling him to paint a compelling portrait of Black constitutionalism. He shows how delegates drew from the experience of profound suffering and deprivation under chattel slavery to craft a vision of the rights required in a multiracial democracy. This vision – inspired in part by the foundational guarantees of the Declaration of Independence – included not just civil rights like the right to own property but also political ones like the right to vote and social ones like the right not to be discriminated against in public or private. Delegates identified rights to bodily integrity and education as fundamental. They excoriated racial prejudice, naming it as an existential threat, and demanded government protection from violence. They embraced not just negative rights (freedom from government interference or prejudice) but also positive obligations (government’s role in meeting needs and providing access). And they did not subscribe to a purely “color-blind” idea of the Constitution. Delegates insisted that there were times, such as in the selection of jurors, when it would be necessary to facilitate the representation of Black individuals. Ensuring equality and remedying the wrongs of the past meant that the law would sometimes need to be race-conscious, not race- blind.

Importantly, Gans doesn’t just trace these core elements of Black constitutionalism but also reminds readers how these ideas directly influenced constitutional reform and ratification. Gans explains that the vision of equal citizenship expressed during the conventions was not initially shared by most white lawmakers in Congress, to put it mildly. At the conclusion of the Civil War, even sympathetic white Republicans proposed reforms that would fall far short of full emancipation. Some for example thought granting a few select civil rights would be sufficient, not seeing the necessity of guaranteeing political rights like voting and jury service. It was only with the influence and prodding of Black Americans that the Reconstruction amendments took the form that they did.

Gans provides a range of evidence for this point, including the widespread coverage of the Black conventions in the press, the inclusion of and citation to the declarations and petitions in the congressional record, and the various audiences that delegates had with lawmakers throughout this period. Persistent activism for Black voting rights led to the passage of the Reconstruction Act, which in turn provided the possibility for ratification of the Fourteenth and Fifteenth Amendments, which were enthusiastically supported by the newly enfranchised citizens. As Gans summarizes, “[i]n a very real sense, Black Americans were constitution-makers, whose activism helped ensure that the Amendments that secured their freedom and equal citizenship bore their imprint to the greatest extent possible.” (P. 45.)

This historical evidence sets the stage for Gans’s jurisprudential critique. Contemporary jurists, in failing to include these understandings as part of the public meaning, have profoundly misinterpreted these constitutional guarantees. As he writes, courts currently “present history as if white voices and views were the only ones that mattered.” (P. 44.) In ascertaining the meaning of the amendments, they look almost exclusively to congressional debates (in which white men vastly predominated) and to letters and publications by elite white men. This elision erases Black voices from that history, despite their centrality to the amendments’ creation and ratification. This both deprives us of a full picture of the laws’ meaning and perpetuates historical exclusion.

What would it look like to take into account the understanding of equal citizenship offered in the Black conventions? Gans argues that taking these perspectives seriously will necessitate a change to the current trend line in constitutional interpretation. Gans identifies four principles that, as a normative matter, could and should be strengthened by this more inclusive constitutional history: the protection of unenumerated rights; the guarantee of state protection from prejudice based on discriminatory impact alone (regardless of intent or purpose); an  expansive understanding of congressional enforcement powers; and an acknowledgement that race consciousness can be required in order to achieve true justice and equality.

In critiquing the failures of courts to attend to this history, Gans joins the ranks of a growing chorus of scholars who have taken jurists to task for claiming to interpret the Constitution based on “history and tradition” but proffering only a crabbed, elitist, and incomplete view of that history. Examples of this include recent work by Reva Siegel, Jack Balkin, Gregory Ablavsky and W. Tanner Allread (reviewed here and here in Jotwell), among others. Forgotten Founders is an important and timely addition to this canon, setting the stage for a more accurate interpretive framework.

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Abdurrahman Atçil

In his famous 1957 Oliver Wendell Holmes Lecture at Harvard, the renowned British legal philosopher H. L. A. Hart presented a vision of law as a system of rules validated through institutional procedures and not dependent on moral merit for their validity. Later that year, his American colleague Lon Fuller countered that only an “inner morality” imbues law with its binding force; normative statements lacking moral merit do not qualify as law. This debate, states Allan C. Hutchinson in Hart, Fuller, and Everything After, defined the agenda of Anglo-American jurisprudence for decades afterward; but, closely bound up with the historical and intellectual conditions of its day, he argues, it offers a poor framework for discussing the diversity of legal practices beyond the postwar liberal societies of Britain and the United States. As an historian of Ottoman law, I’m inclined to agree.

One of the great challenges that historians in fields like mine face is the difficulty of connecting the literature on modern legal theory with the normative worlds of societies far different from the ones that figures like Hart and Fuller addressed. By unpacking the seemingly timeless questions at the center of the Hart–Fuller debate, Hutchinson instead presents law as an ongoing social activity shaped by interpretation, institutional practices, and political and moral struggles. In doing so, he makes legal theory speak to these other worlds, and thereby makes it more useful for a much broader audience.

Rather than seeking a universal definition of law or a set of its necessary conceptual features, Hutchinson urges legal theorists to attend more closely to the political and value-laden dimensions of law and to the role of historical contingency in its formation. From my perspective as a legal historian, this conception of law parallels developments in our field (and anthropology) at least since the 1960s, where scholars have emphasized the co-existence of multiple legal orders and the embeddedness of law in social and political conditions in premodern and non-Western societies. Work on legal pluralism, in particular, has long treated law less as a bounded system than as a set of overlapping and competing normative orders. Without explicitly engaging this body of scholarship, Hutchinson’s account moves in a comparable direction by underlining contingency, practice, and the co-constitution of law and power. In this sense, his intervention brings legal theory closer to approaches that have become familiar in neighboring disciplines.

I assigned Hutchinson’s book in the theoretical section of my graduate seminar on Ottoman legal history this semester and found it particularly useful in two respects. First, it provided students with a clear and concise introduction to the major strands of legal theory from the mid-twentieth century onward. They were able to grasp the main positions with relative ease and to situate later developments in relation to the foundational exchange between Hart and Fuller. Second, and more importantly, the book encouraged them to see these theories as historically situated interventions rather than as timeless conceptual frameworks. This proved especially valuable in a course dealing with a different period and region, where the limits of these theories’ applicability become immediately visible.

Hutchinson does not set out to provide a theory of law tailored to historical analysis. However, from my own work, I know just how productive his conception of law as activity and process and his highlighting of the co-constitutive interaction between law, values, and political power can be. Studying, for instance, the formation of provincial law codes in the Ottoman Empire, I see that in the premodern conditions of the fifteenth to seventeenth century, the Ottomans did not have—indeed, could not have had—a rarefied body of rules they sought to impose on the newly conquered provinces of their expanding empire. Rather, a political process of negotiation between imperial authorities and local actors, both drawing upon a range of normative resources, determined the content of law in the provinces. Each province had its own specific socio-political circumstances, and actors within them brought distinct political and moral concerns to bear, resulting in different provincial law codes. Hutchinson’s proposal, though not designed for this purpose, can help capture key features of cases like these and frame them in more analytically precise terms.

For readers interested in the intellectual history of modern legal theory, Hutchinson’s book offers an engaging guide to a foundational debate and its aftermath. For historians of law, it offers a way of seeing why dominant theoretical frameworks have limited reach, and how a shift in perspective, from law as a fixed object to law as a historically contingent practice, can make legal theory more useful.

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Anders Walker

Andrew Isenberg’s Age of the Borderlands should be required reading for anyone interested in the territorial expansion of the United States. The book takes on a slew of myths about the American past, including the once-popular Frederick Jackson Turner thesis as well as the more recent “settler colonial” thesis, both of which cast westward expansion as an inexorable, perhaps inevitable campaign of settlement and conquest. (P. 12.) Isenberg throws this idea into question by positing that from 1790 to 1850, America was a “relatively weak” nation surrounded by “powerful European imperial competitors, even more powerful Indigenous societies, and formidable enclaves of fugitive slaves.” (P. 4.)

The result was that the United States lacked the military force to impose its will “vertically” onto the borderlands and was left having to impose itself “horizontally” through “diplomacy or commerce.” (P. 4.) This, in turn, meant that the prophetic concept of manifest destiny—the notion that God gave North America to white people—“was but one of many ways early nineteenth-century Americans imagined the future of their borderlands.” (P. 4.) To illustrate his point, Isenberg excavates five stories from the borderlands, each of which constitutes a chapter that, in turn, challenges the idea that manifest destiny drove American settlers across the continent like a horse-drawn steamroller.

In his first example, Isenberg focuses on Florida, a Spanish colony that attracted African Americans escaping slavery and Native Americans escaping settlement. Both groups joined with Spanish garrisons and British traders to form an armed, multiracial society that “terrified southern slaveholders” and drew the attention of Major General Andrew Jackson, who invaded the colony in 1814 and again in 1818. (Pp. 50-51.) However, Jackson’s incursions failed. In both instances, the Seminoles refused to engage Jackson in open combat, melted into the forest and – when he finally left – “moved back into the villages that Jackson destroyed.” (P. 59.) Though Jacksonian historians tend to portray these escapades as an important step in American Empire, Isenberg makes the startling claim that his campaigns were futile. He suggests – plausibly – that Jackson’s Florida adventures “hindered” the transfer of Florida from Spain to the United States by delaying negotiations that had already begun between John Quincy Adams and Spanish envoy Luis de Onis. (P. 59.)

In his four subsequent chapters, Isenberg tells similar stories that do not fit conventional narratives. For example, Chapter Two recounts the rise and fall of the factory system, an effort by the federal government to “win the good will of indigenous people” by selling them goods at low cost, a project that did little to advance American sovereignty but did much to materially benefit the Osage Nation. (P. 80.) Chapter Three excavates the startling tale of a federal program designed to vaccinate Native Americans. Chapter Four introduces us to Benjamin Lundy, a Quaker who founded a colony for free Black people in Texas, and Chapter Five gives us white missionaries who ended up integrating into Dakota culture.

Together, Isenberg’s narratives give us a crazy quilt of experiences on the southern and western frontiers, a set of narratives that complicate prevailing ideas about westward expansion, settler colonialism, and American empire. However, these are not simply anecdotes. Isenberg’s first chapter coincides with recent work on the interracial society that existed in Florida during the early nineteenth century, a topic that Jane Landers, Nathaniel Millett, and Matthew Clavin have all covered.

Meanwhile, Isenberg’s second chapter confirms the argument that Native nations remained much more powerful than historians had once thought, a claim made recently by Pekka Hämäläinen, Kathleen DuVal, and Ned Blackhawk. Native power forced the federal government to intersect with Indians horizontally rather than vertically, through trade and immunization projects for example, rather than simply military conquest. Indeed, military conquest does not play much of a role in the book, a point that coincides with Stuart Banner and Claudio Saunt’s detailed descriptions of the convoluted process of removal that played out over the course of the 1830s.

Three conclusions follow.

First, the idea of manifest destiny was less a motivating ethos than an ex post facto narrative aimed at obscuring what was otherwise a complex process of experimentation, negotiation, and military failure. Isenberg shores up this point by explaining that the idea of manifest destiny did not become “anointed” by historians until the 1890s, when revisionists sought to rationalize American imperialism abroad. (P. 22.)

Second, the consolidation of the American continent did not really begin to take place until the Civil War, when the Republican Party seized control of Washington, sponsored a transcontinental railroad, and put to the sword anyone who dreamed of other sovereignties within the continental boundaries of the United States. The Civil War did not simply vanquish Confederate dreams of independence, in other words, but Native American ones as well–a point that Eric Foner, Heather Cox Richardson, and Kathleen DuVal have all made.

Third, and most important, if the narrative of manifest destiny does not explain American history during the first half of the nineteenth century, what does? Isenberg offers a compelling alternative, a story of experimentation and innovation that reflected the “richly complex, contradictory, and rapidly changing” United States. (P. 17.) His book is not simply a tale of racist white settlers trampling Native Nations and enslaving African Americans, in other words, but a cacophony of diverse voices and peoples who traded, experimented, and – ultimately – co-existed. Ironically, this might be a more useful way to think about America even today, for despite the imperial flexing and racist tub-thumping that came to characterize the second half of the nineteenth century and the first half of the twentieth, the past half century has yielded a much more complex, contested, and variegated national landscape. While some undoubtedly still yearn for the days of manifest destiny, others decidedly do not. Many Americans have a more manifold destiny in mind.

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Jedidiah Kroncke

María Montoya’s A Workplace of Their Own examines labor conflict in Colorado’s mining industry from the late 19^th to the early 20^th century, a period marked by acute violence that has long attracted study by a range of historians. Yet Montoya’s attention to new local, national, and even transnational elements of these conflicts recontextualizes existing accounts while reminding us of the all-too-often forgotten violence at the heart of American labor history.

Montoya frames her engagement around two dyads: the 1914 Ludlow Massacre and the 1927 Columbine Mine Massacre; and the visions of labor relations advanced by the two inheritors of Colorado’s then-largest mining companies, John D. Rockefeller, Jr. and Josephine Roche. The book excavates these massacres not as discrete episodes but as outgrowths of broader contests over the agency of labor in the workplace and the relative influence of local and national coalitions seeking to manage labor conflict. This reorientation is then powerfully illustrated by Rockefeller and Roche’s competing, if not openly hostile, attempts to rehabilitate their families’ reputations by using Colorado as a testing ground for models of industrial peace that later influenced national debates and legislation.

One powerful dividend of this approach is showing how Rockefeller and Roche’s visions of labor relations were derived from different arenas of Progressive politics and Social Gospel influences, but concurrently tied to both industrialists’ high-society upbringings in New York City. Rockefeller embraced notions of scientific management and foundation-based philanthropy, which informed his intra-corporate “Industrial Relations Plan.” This plan involved a program of scientistic inquiry into the entire life cycle of laborers, which could be adjusted through the intentional planning of corporate housing communities. Roche embraced a more procedurally grounded understanding of class and racial reconciliation, seeking to focus workers on their family lives as private consumers, buoyed by better wages and working conditions. Neither engaged with the more radical democratic visions of worker ownership or intra-corporate agency that often grounded the aspirations of Colorado miners.

A Workplace of Their Own thoroughly explores this contest in great detail while centering the driving force of local conditions in Colorado. One standout dimension is Montoya’s textured sense for how physical geography shaped labor conflict and the quite different experiences miners faced under Rockefeller’s Colorado Fuel and Iron Company (CFI) and Roche’s Rocky Mountain Fuel Company (RMFC). Montoya’s previous work on Western land dispossession clearly sensitizes her demonstration of the truism that land and labor, both inside and outside of the workplace, can never be separated. Rockefeller’s general hostility to unions was enabled by the relative isolation of the CFI mines and a resulting domination through corporate housing. In contrast, Roche’s more conciliatory stance was almost a necessity given the more socially diverse and sprawling community in which RMFC miners lived. These differences fundamentally shaped patterns of socialization and the nature of miners’ relationships with local merchants and governmental interests. Even the nature of the mining in each location interacted with how new technologies and patterns of racial migration impacted labor relations.

Montoya’s attention to physical geography also contributes to her effective detailing of the tensions between local and national associations of labor and capital, often just as suffused with distrust as were relations between labor and capital locally. It quickly becomes clear how wide the ideological gap remained between even union-friendly Progressives like Roche and local miners, who were inspired by masculinist ideas of what Montoya calls “local producerism”—tied to notions of labor republicanism fundamentally uncomfortable with wage labor and managerial authority. Roche’s large-scale procedural vision of “summit arbitration” was repeatedly frustrated by local unions’ sense of independence, especially in regard to striking. Even within Colorado, urban Progressives who saw better labor conditions as supportive of family coherence advanced moral visions that miners largely rejected; in turn, these reformers were averse to any acts of violent resistance by miners.

A Workplace of Their Own highlights a variety of key dynamics beyond labor ideology that led to the recurrent failure of both Rockefeller’s and Roche’s approaches to industrial peace. The Progressive fixation on alcohol prohibition to “improve” working-class, especially immigrant, families, fractured labor alliances, even as “the family” was used to justify state declarations of martial law to suppress strikers. Ideas of patriotism were used both for and against labor activism over time, intertwined with shifts in foreign policy, which also fractured local and national labor coordination along racial and religious lines. The Colorado chapters of the Ku Klux Klan further undermined labor coalitions, although in unpredictable ways, as they “prioritized their hatred of immigrants, Jews, Catholics, bootleggers, saloon owners, and those who trafficked in prostitution (‘white slavery’) over their hatred of Black Americans.” (P. 119.) Even moments of relative labor peace, or seeming victory for Roche’s model, were, in retrospect, as contingent on the price of coal as they were on ideological resonance.

Montoya shows how this contingency makes it difficult to characterize any single perspective during this period as either “radical” or a more universally effective strategy for industrial peace. As is endemic to labor history, valorizing even workers’ own perspectives does not necessarily reveal some ideal perspective, especially in eras where racial, religious, and gendered chauvinism drove local strategies as much as did nationally paternalistic notions of “American” family life.

Still, A Workplace of Their Own does display some sympathy for Roche in her union-friendly quest to improve working conditions and in her many unsuccessful attempts to persuade other industrial leaders to recognize the shared virtues of improved working conditions. Though both Rockefeller and Roche eventually shifted their attention elsewhere, Roche was far more active in addressing labor issues through the emerging New Deal politics driven by the Roosevelt administration, while Rockefeller turned most of his industrial and philanthropic energy elsewhere. Roche’s experiences in Colorado clearly impacted her work promoting the procedurally oriented bargaining regime of the National Labor Relations Act (NLRA), which sidelined any notion of collective ownership or direct worker participation in workplace governance.

What ultimately emerges from A Workplace of Their Own is not just a history of competing ideologies and shifting coalitions, but a history, especially for workers, of violence. Montoya addresses the gap between “lofty rhetorical debates” and “violent battles that often included machine guns and dynamite.” (P. 1.) She opens the book with a vignette about displaced workers who had been expelled from company housing for striking, and whose tent colony was then burned down following a private militia’s invasion. Frantic mothers searched for their children, ultimately to discover that they had died in a cellar in which several families had succumbed to asphyxiation.

Such violence was intimately tied up with the law, which was both recurrent and impotent throughout Montoya’s miners’ lives. Her granular attention to local conditions always includes issues of legality, present beginning with the leases that initially structured miners’ control over their workplaces. The patchwork of state laws governing labor relations during this era can be used to determine whether various actions by labor and capital alike were “illegal” at any given time. Later, the very issues that were decisive in leading up to the Ludlow and Columbine massacres, from miners’ claim to a “right to property” in their jobs to the use of replacement workers, all faced judicial refutation under the NLRA regime.

But, as is endemic to labor history, the force of law recurrently yielded to facts on the ground. The private militia that stormed the tent colony with which Montoya opens the book was just one instance where such violence was deployed against not only workers, but also pro-union governmental officials and journalists. Moreover, such militias acted “in the face of court orders declaring their actions to be illegal, they detained strikers and their sympathizers in bullpens, beat them in the streets and in their homes, and deported them out of the jurisdiction, sometimes even out of the state.” (P. 60.) While miners did deploy violence of their own, the treatment of this violence by courts was a far cry from the near total insulation of employer and state-inflicted death from legal accountability.

While such visceral violence may seem absent in modern American life to some, this perception is rooted in the same issue of social distance shared by Rockefeller and Roche, despite their differences. Indeed, in the present moment, the dynamic Montoya describes may appear less remote to many readers than it did just a few years ago. This reality speaks to the fact that labor conflict always raises the most fundamental questions about whether democratic values have a role in American economic life, and about the unsettling consequences when their absence becomes systemic—often replaced by dehumanizing chauvinism.

Montoya keeps her historiographical work largely separate from broad normative generalizations but cannot resist noting that issues of dignified work and economic inequality remain unresolved. Today, the future of work is often discussed as an issue of technocratic adaptation. And even though empirical sociology has demonstrated with increasing force the many enduring and compounding traumas of precarious work, attempts to breathe this reality into the flattened metrics of most labor market models still rarely inform such debates. Whether this disconnect will again lead to conditions more like those experienced by Montoya’s miners is ultimately a political, not legal or technical, question, as it has always been throughout American labor history.

The post The Forgotten Violence and Perpetual Tensions of American Labor History appeared first on Legal History.

Elizabeth D. Katz

Family law scholars, activists, and practitioners have devoted increasing attention to state actions that separate hundreds of thousands of children from their parents every year in the United States. Many condemn laws that regulate child removal and foster care, finding current approaches insufficiently protective of children’s wellbeing. Commentators consider how reframing and strengthening children’s and parents’ rights may better ensure respect for family integrity. These accounts often include historical context that emphasizes continuity in the harmful, classist, and racist treatment of marginalized families.

In The Origins of Family Rights and Regulations, Professor Laura Savarese identifies a forgotten period in which parents’ habeas corpus litigation prompted the development of formal protections for the parent-child relationship. Predating canonical U.S. Supreme Court cases constitutionalizing parental rights (beginning with Meyer v. State of Nebraska (1923) and Pierce v. Society of Sisters (1925)), parents sued institutions to recover custody of their children and contributed to nascent understandings of parental rights.

The article relies on an impressive array of historical evidence, including case files, children’s institution records, newspaper articles, and judicial decisions. Savarese concentrates on New York, often a trendsetting location, and richly supplements this focus with materials from other states. Moreover, the article’s footnotes provide a bibliographic guide to scholarly literatures on the histories of welfare, juvenile justice, child placement, and related family law topics. The article enhances a growing body of historical scholarship focused on the legal treatment of parents and children in diverse contexts.

In Part I, Savarese describes how the creation of children’s institutions in the nineteenth century opened avenues for state control over family life and thereby prompted novel conflicts between parents and the state. In a series of laws enacted throughout that century, the New York legislature authorized courts to commit children to institutions for an array of status offenses, such as vagrancy, begging, or lacking “proper guardianship.” (P. 77.) This sweeping approach to conceptualizing parental neglect and juvenile delinquency soon spread to other states. Additionally, new laws permitted impoverished parents to surrender their children to institutions, in a period when families had access to few safety nets during difficult times. The managers of children’s institutions sometimes refused to return children when parents sought reunification.

These legal changes translated into more incidents in which parents turned to courts to demand return of their children. Savarese points out that the few published cases on this issue create the misleading impression that courts uniformly supported states’ power to remove children from their families and retain them in institutions. However, Savarese identifies a “legal countermovement” through close attention to previously overlooked habeas challenges. (P. 82.) In New York alone, lower courts heard hundreds of such cases in the 1860s through 1920s.

Part II turns to the consequences of parents’ habeas litigation, which prompted some of the earliest legal decisions squarely considering parental rights. Savarese identifies three categories of cases that reached state courts: (1) a parent disputing a child’s commitment to an institution, often on the basis that the parent did not receive notice or that the charges were insufficient to satisfy statutory requirements, (2) a parent seeking return of a child because the parent had addressed whatever financial or other problem led to the child’s initial lawful commitment, and (3) a parent challenging a child’s placement in a foster or adoptive home on the basis that the parent did not consent. While these cases had mixed results, they collectively led to the development of enduring principles and presumptions—including that parents have a right to notice and opportunity to respond to charges related to a child’s possible removal and that there should be a presumption of parental fitness to protect parents’ rights and children’s liberty.

In Part III, Savarese considers lessons this history offers for the family regulation system today. Savarese suggests that history supports modern scholars’ proposals to recognize children’s constitutional right to family integrity, an approach some state high courts have endorsed. She also observes that court-based strategies may prompt legislative and social change. She concludes, “The past illuminates both the value and limitations of litigation and lawyer-led reform, suggesting that more radical change, in the current day, will also depend on building the political power of parents and children who are most exposed to the harms of family policing.” (P. 128.)

While The Origins of Family Rights and Family Regulation is a thorough and valuable accounting of a crucial episode in family law, there is an angle that would be productive to explore further. In New York and many other states, most children’s institutions were private faith-based orphanages run for coreligionist children. Indeed, New York law required that children placed in institutions be matched by religion “to the extent practicable.” How might that setup have affected the cases and advocacy that Savarese identifies? There are a few hints in the article. For example, Savarese notes that the leaders of Catholic institutions were particularly vocal in favor of parents being able to use institutions as a safety net without fearing that their children would be placed in foster homes. (P. 114.) She also observes in a footnote that many of the New York cases she analyzes likely involved Catholic immigrants, based on available evidence. (P. 84 n.61.) Some petitioners received legal counsel through the help of Catholic charitable groups. (P. 84 n.61.)

In my own research, I found that that religious groups’ preferences and priorities were major drivers of child placement policies in the studied period. It was widely recognized that Catholic institutions held a disproportionate share of committed children in many large cities. In late nineteenth-century New York City, 80 percent of dependent children were in Catholic orphanages, even though Catholics comprised only around a third of the city’s population. New York’s Catholic Protectory was the largest orphanage in the country by 1900. Protestant charity reformers criticized these statistics, in part because of the portion of public funding directed to Catholic institutions. Some Protestant leaders claimed that the system of allocating per capita payments created a perverse incentive for Catholic institutions to accept and keep children who should be with their parents (a concern with strong modern resonance). Thus, the demographics and politics of religious groups are crucial context for the history Savarese so capably presents.

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Samy Ayoub

Mohammad Fadel’s Beyond Liberal Zionism, is an extraordinary work of legal and moral imagination. Fadel reframes one of the most enduring and polarizing questions in international law: what would a just Zionism look like? In his answer, Fadel insists that international law and political liberalism, properly understood, retain the moral and institutional resources to guide Israelis and Palestinians toward a just settlement.

The article opens with an assessment of liberal Zionism. Fadel argues that what is commonly called liberal Zionism recognizes Palestinian suffering but denies Palestinians standing as rights-bearers. This position is exemplified by New York Times commentator Ezra Klein and by the late Israeli legal theorist Ruth Gavison. The goal of liberal Zionism is a humane peace, not a just one. This distinction—between a moral appeal to compassion and a juridical claim to equality—animates Fadel’s entire article. Through a careful reading of Klein’s widely discussed, post-October 7 podcast series on the Israel–Palestine conflict, Fadel shows how even the most self-consciously liberal commentators confine Palestinian aspirations to a humanitarian vocabulary of aid, decency, and empathy. The effect is to transform a problem of law and justice into a problem of sentiment. Palestinians appear as objects of moral concern rather than subjects of legal right.

The first half of the article is a meticulous diagnosis of this moral displacement. Using a Rawlsian framework, Fadel argues that liberal Zionism’s pursuit of political goods such as security and Jewish national self-determination are “rational” aims. However, Zionism’s refusal to recognize any duty to pursue its rational political aims within a framework that acknowledges an obligation of reciprocal recognition of Palestinians as free and equal citizens renders the Zionist political project unreasonable from a Rawlsian perspective. By emphasizing humanitarianism, liberal Zionism implicitly constructs Palestinians as rightless—a people who may be treated with compassion but not with juridical equality.

The second half of the article offers one of the most rigorous reconstructions of Palestine’s legal personality under international law. The coherence of liberal Zionism, Fadel argues, depends on historical erasure of the existence of Palestine as a juridical person in the post-World War I era with citizens having rights as Palestinian citizens. Against this erasure, Fadel turns to the League of Nations Mandate system and the Covenant’s Article 22, which declared that the former Ottoman territories had reached a stage of development where their existence as independent nations could be “provisionally recognized.” Palestine, therefore, was not a terra nullius, but a recognized international legal person. Pursuant to the terms of the Palestine Mandate, Great Britain, as mandatory, was obligated to assist Palestine achieve independence and protect Palestine’s independence from external threats. The duty that Great Britain undertook toward Palestine and its people, moreover, was described as “a sacred trust of civilization” in the Covenant of the League of Nations.

Fadel’s account of the Palestine Mandate is particularly illuminating. He reminds readers that Article 2 required the British to “safeguard the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion,” while Article 7 obligated Britain to promulgate a nationality law—an act that it duly performed through the Palestine Citizenship Order of 1925. This order recognized both Jewish and Arab citizens of the Ottoman Empire who had been habitually resident in the territory that became Palestine as Palestinian citizens, reflecting the settled principle of customary international law governing state succession at the time. Drawing on historical treaties, judicial decisions, and the Mavrommatis Palestine Concessions case before the Permanent Court of International Justice (Mavrommatis Palestine Concessions (Greece v. U.K.), 1924 P.C.I.J. (ser. B) No. 3 (Aug. 30).), Fadel reconstructs a complex legal order in which Palestine participated in international agreements, possessed recognized borders, promulgated a domestic legal order, had courts and maintained a functioning nationality regime. In this light, the Arabs of Palestine were not stateless: they were citizens of a state awaiting independence, as expressly recognized by the international instruments that concluded World War I. Moreover, the post-World War I order in the former Ottoman provinces also confirmed that they were not citizens of any other successor state of the Ottoman Empire.

Fadel then connects this historical reconstruction to his central normative claim. Once Palestine’s legal existence is acknowledged, the Nakba—the mass expulsion and denationalization of Palestinians in 1948—cannot be seen merely as the tragic byproduct of war; it must be understood as a violation of core principles of international law – no one may be rendered stateless – and of the League of Nation’s “sacred trust of civilization,” a duty that the UN Charter reaffirmed. Fadel’s point, in my reading, is not to rehearse historical grievances, but to recover the legal continuity of Palestinian rights under the international system that Zionism, in reliance on the Balfour Declaration, the Mandate for Palestine and the proposed UN Partition Plan of 1947, ignores. The result is striking: Fadel uses the same liberal and legalist traditions of public international law that early Zionists appealed to—self-determination, equality, and progress—to show that these principles, if taken seriously, establish a de jure right of self-determination for the Arab population of Palestine no less than that accorded to Jewish Palestinians     .

From this historical and legal foundation, the article moves to its philosophical culmination: a reconstruction of Zionism within the framework of Rawlsian political liberalism. Here Fadel’s ambition becomes clear. If political liberalism aims to reconcile citizens holding different comprehensive doctrines under fair terms of cooperation, then it cannot privilege one ethno-religious community’s conception of the good over another’s. A just Zionism, in Fadel’s view, would therefore accept liberal principles of justice as politically prior to the claims of national identity. He applies the consequence of this idea to Israel’s “basic structure,” arguing that its current constitutional order—comprising nationality laws, land policy, and the structure of citizenship—institutionalizes ethnic domination and therefore fails to satisfy basic principles of liberal justice. Accordingly, reforming that basic structure to secure Palestinian political equality is not an act of benevolence but a requirement of justice.

The implications are far-reaching. In Fadel’s account, Zionism consistent with political liberalism would preserve Jewish collective life and cultural expression but within a state that fully recognizes the political equality of all its citizens. It would subject sovereignty to moral and legal constraints, reimagine property and return through the lens of international law, and transform the right of return from an existential threat into an affirmation of equality before law. In this vision, justice and security are not opposites; they are mutually dependent.

What makes Beyond Liberal Zionism such an important contribution is not only its moral courage but its juridical genius. Fadel refuses the easy binary between political theory and positive law. He reads the Mandate, the Treaty of Lausanne, the United Nations Charter, and contemporary doctrines of state succession with the same care that he reads Rawls and Gavison.

Readers will find Fadel’s article not merely diagnosing a failure but building a path forward—a moral project animated by faith in the redemptive possibilities of law. For scholars of international law, constitutional theory, and political philosophy, this is essential reading. It reminds us that the project of liberal justice is neither exhausted nor irrelevant to the world’s most difficult conflicts. Fadel’s intervention is as much a defense of liberalism’s moral core as it is a critique of its failures. It is an invitation to recover the law’s ethical imagination, and to believe once more that equality—secured by law, not sentiment—is still within reach.

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Jonathon Booth

Over the past decade, histories of American policing have proliferated. Understandably, the majority of these works have focused on policing major American cities in the twentieth century. These works have transformed the field, in particular by revealing important insights about how racism has shaped policing, but they focus only on the tip of the iceberg. Beyond the largest urban centers, there is also a vast and complicated history of policing in smaller cities, rural areas, and special jurisdictions like college campuses that legal scholars have yet to map fully.

Grace Watkins dives into this less-studied realm of criminal justice history with her brilliant article Piety Police. Watkins has emerged as a leading scholar of campus police, and this article presents an entirely original account of the importance of private religious police forces – primarily those affiliated with religious universities. The bulk of the narrative and of Watkins’s archival research focuses on the development of the Brigham Young University Police Department (BYUPD) and its authority to enforce the law and campus rules, both on and off campus. Through her extensive research in a fragmentary archive, Watkins has uncovered a wealth of detail. Most notably, she reveals the extent of the BYUPD’s anti-gay policing, including a shocking 1979 account of the BYUPD employing an undercover student to place advertisements in the local newspaper to entrap a local gay man and arrest him for forcible sexual abuse.

Along with rural law enforcement, campus police are one of the least studied sectors of American policing, in part because most people think of them as security guards who bust students for underaged drinking. But as Watkins demonstrates, they have broad criminal enforcement authority, and their jurisdiction often extends far beyond the campus gates. The BYU police were able to legally arrest even non-students for entirely off-campus activities because they had been deputized by the Utah County Sheriff Department. (In fact, the gay man’s arrest mentioned above took place outside of Utah County, but a court eventually held it to be legal because a state police officer was also involved in the sting.) In the 1960s and ’70s, the BYUPD focused much of its energy on policing gay students and local gay men, sometimes driving as far as Salt Lake City and St. George to surveil gay students.

Watkins notes that arrangements granting campus police broad off-campus criminal jurisdiction are quite common – indeed, the BYUPD was for a time the second largest force in Utah County (behind that of the city of Provo). To take two prominent contemporary examples: the Harvard University Police are “licensed special State Police officers and deputy sheriffs in both Middlesex and Suffolk County” and the University of Chicago Police famously patrol the whole South Side. (Watkins includes a helpful appendix of state laws that give police at public and private universities the authority to enforce campus rules and regulations. Other campus police forces are deputized by or have memorandums of understanding with local police and sheriff departments.) Despite their public powers, the private nature of campus police forces allows them to avoid public accountability, such as by refusing to comply with public records laws.

Recently, the BYUPD faced a significant scandal when Salt Lake Tribune reports revealed in 2016 that its officers had shared “intimate, nonpublic” details of sexual assault reports with BYU to assist with Honor Code enforcement. This information sharing allowed the university to charge victims of sexual assault with Honor Code violations such as drinking alcohol or allowing a male student in their room. This controversy almost caused the state to decertify the BYUPD and led to the passage of a state law requiring the BYUPD to comply with public records laws. The department responded by splitting the force in two, leaving in place the BYUPD with public powers and creating a separate private security force that could enforce the Honor Code without being subject to public records requests. As Watkins writes, “The department, in the end, may have achieved the best of both worlds: private records for some of its operations, but continued access to state law-enforcement authority.” (P. 3045.)

What little research there is on campus police forces tends to focus on schools at the very top of the rankings. Watkins instead focuses on BYU because it is one of the many religious universities in the United States that is allowed to enforce both religious campus rules and the general criminal law against unaffiliated Americans. This shift in focus is another of Piety Police’s merits. BYU’s history highlights the lack of basic freedoms of speech, privacy, and association for students of religious universities – deprivations that often go unnoticed as the media focuses exclusively on the Ivy League.

At a time when the Supreme Court has essentially read the Establishment Clause out of the First Amendment, it seems likely that police forces affiliated with religious universities and even directly with churches may further proliferate. As Watkins shows, these forces often police Americans with no religious affiliation and her case study of BYU “demonstrates the clear risks of overlapping jurisdiction.” (P. 3050.)

Watkins’s article adds a new and vital dimension to the policing literature, especially as campuses across the nation increasingly use their police forces to spy on and arrest student protestors. It also highlights how anti-gay policing – histories of which usually end at the time of the Stonewall Uprising – persisted longer than is commonly understood. This history is particularly essential as policing of, and other legal threats against, gay and transgender people have again begun to increase. If nothing else, it should inspire legal scholars to investigate the powers, jurisdiction, and histories of our own campuses’ police.

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Thomas J. McSweeney

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court relied on medieval English legal texts to argue that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law.”¹ In Context Matters, Sara Butler demonstrates that reading medieval texts shorn of their context can be dangerous. Butler shows us not only that the rationales behind abortion laws were different in the Middle Ages, as we might expect, but also that the term “abortion” itself referred to a broader and different set of practices than those encompassed by the word “abortion” in its contemporary usage. Butler argues that, when we put medieval abortion laws in their context, they appear to be something fundamentally different from modern abortion laws. Rather than an unbroken chain, we see two very different types of practices in modern and medieval abortion law.

Butler, whose scholarship has encompassed topics such as forensic medicine in medieval homicide investigations, the history of peine forte et dure, and, indeed, the treatment of abortion in medieval English law, is well positioned to add important context to the texts Justice Alito cites in Dobbs. She surveys writing on abortion over a period of several centuries and a number of different geographic contexts to illuminate the major themes of medieval thought about abortion. And, as Butler observes, the major problem the court faces in trying to trace the history of abortion back to the twelfth or thirteenth century is that in discussing abortion today and abortion in the Middle Ages “we are not comparing like entities.” (P. 22.)

The medieval concept of abortion was both narrower and broader than modern conceptions. On the one hand, medieval law treated miscarriage as a category of abortion, as a miscarriage was thought to be a sign of negligence on the part of the mother. On the other hand, as is well known, the medieval concept of abortion abortion only encompassed the death of a fetus post-quickening, as that was thought to be the point at which the fetus was imbued with a soul. Butler also shows, however, that a number of medieval texts demonstrated “an unwillingness to treat the fetus as a person” even after quickening. (P. 10.) Both Britton and the Mirror of Justices—two English legal texts of the thirteenth century that were not cited in Dobbs—state that it was not felonious homicide to kill a fetus before birth.

Medieval texts were thus mixed on whether the killing of a quickened fetus counted as homicide. But even among those that did treat abortion of a quickened fetus as homicide, it is not clear that we should read those texts as treating abortion as “criminal.” As Butler observes, “most of the laws which refer to abortion as homicide belong to canon law.” (P. 10.) As Butler pointed out in a previous article, only a handful of cases where a woman was prosecuted for aborting her fetus have been identified for the whole of the medieval period in England, and they are all cases from the ecclesiastical courts.² The king’s courts regularly intervened when a pregnant woman was assaulted and her fetus died as a result, and it is clear that they treated the killing of the fetus as homicide in those types of cases. But when it came to a woman aborting her own fetus, “more often than not, it was deemed a spiritual matter, reserved for the internal forum, and deserving of penance, not punishment.” (P. 10.)

Butler’s observation raises an interesting question: if the Supreme Court is going to apply a “history and tradition” test, to what extent should we consider canon law part of that tradition? The courts of the Church had jurisdiction over subject matter that we would think of as secular today, such as probate, and also had a criminal jurisdiction over, for instance, sexual sins. Should canon law count as part of the nation’s “history and tradition”? Or is it evidence that medieval law was just too different from modern law for it to be of much use in constitutional interpretation?

But Butler argues that, even in cases in which abortion was criminalized, the rationale of that criminalization was very different from the rationale of abortion laws today, which aim at protecting the fetus. She presents a number of examples of rules that treated abortion primarily as a crime against the woman’s husband, either because it deprived him of an heir or because it was carried out to conceal the woman’s adultery. Butler argues that we should understand laws about abortion in the context of an array of laws that were “founded firmly in discomfort with a woman’s control over childbirth” and that sought to protect husbands against being cheated out of an heir. (P. 15.) Concerns about abortion mirrored concerns, found in texts such as the Castilian Siete Partidas and the English Bracton, that a recent widow might fake a pregnancy and substitute someone else’s child in order to produce an “heir,” defrauding her dead husband and his family.

I am not certain that this context would convince the Supreme Court. After all, the question the Court posed, and was ostensibly using these historical examples to answer, was whether the “right to abortion” is “deeply rooted in the Nation’s history and traditions.”³ I doubt one could make that argument from the medieval sources. But, as Butler demonstrates, the sources do not clearly establish that abortion, at least abortion in the sense the word was used in Dobbs, was criminal in the medieval common law. Indeed, it is not clear that it was a matter for the common law at all.

Leaving aside the larger debate over whether courts should employ historical tests of this kind, and assuming that they will continue to do so, Butler’s Context Matters illustrates the kind of careful scholarship that courts should be looking to. It reminds judges and clerks that the words they are reading in a medieval text do not always mean what they think they mean. When reading medieval texts, context matters.

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Sara Mayeux

In New York State Rifle & Pistol Ass’n., Inc. v. Bruen, 597 U.S. 1 (2022), the Supreme Court instructed lower courts to apply a “history and tradition” test when evaluating the constitutionality of gun laws. For example, if considering an age limit on gun possession, the court must determine whether states imposed sufficiently analogous age limits in the past. Since Bruen, I have occasionally received inquiries from trial lawyers around Tennessee. Inevitably they have a looming deadline and need a legal historian to help out with a gun case, and inevitably I have to decline. I can understand why my name might pop up in a Google search: I live in Tennessee, I teach constitutional law (including cases like Bruen), and I’m a legal historian by training. But I don’t have any particular expertise in the history of gun laws, at least not as historians define expertise (i.e., years of immersion in the relevant primary and secondary sources).

When reading Joseph Blocher and Brandon L. Garrett’s forthcoming article, “Applying History as Law,” I realized my experience illustrates a larger phenomenon: “In the wake of Bruen, it quickly became apparent that the number of historians who seriously study gun laws is actually quite small; it would be impossible for them to serve as experts in every case, even if the litigants consistently had adequate resources to retain them.” (P. 46.)¹

As Blocher and Garrett chronicle, the Supreme Court in various doctrinal contexts has increasingly emphasized historical facts in constitutional litigation (a category that potentially includes a large swath of otherwise workaday criminal cases). Of course, there is plenty of theoretical debate about the role history should play in constitutional interpretation. But this article focuses primarily on the nuts-and-bolts questions of practical implementation that “history and tradition”-type tests raise for lower courts and litigants. And ultimately, the authors raise provocative questions about whether it’s possible, much less desirable, for historical fact-finding to become a routine part of day-to-day litigation.

To be sure, jurists have long drawn upon historical background to interpret the meaning of constitutional provisions. In recent years, though, the Supreme Court has increasingly adopted doctrinal tests that require lower courts to answer specific and somewhat bespoke historical questions when applying the tests (e.g., what is the history of age limits on gun possession). Although the Second Amendment post-Bruen is a major focus, the authors canvass other doctrinal contexts too, such as abortion and religion. In these areas, the justices not only cite historical facts themselves, but also “announc[e] tests that require lower courts to engage in their own historical fact-finding in order to resolve concrete disputes.” (P. 6.)

Such tests can raise difficult questions for lower courts. For example—and notwithstanding that Supreme Court justices often seem to feel at liberty to find facts themselves through in-chambers research and/or amicus briefs—American trial judges in adversarial proceedings are not usually supposed to engage in independent fact-finding. The Federal Rules of Evidence, for example, prohibit taking judicial notice of facts unless they are beyond “reasonable dispute.”

Therefore, if a case turns on debatable historical facts, presumably the parties must place those facts into the judicial record. But how mechanically should this occur? When are written filings sufficient? Should the parties hire historians to testify as experts? If they don’t, should the trial judge appoint an independent expert? Can lower courts recycle historical facts previously found by other courts as a kind of “precedent”? As Blocher and Garrett summarize, lower courts and litigants have recently debated and divided over such details, particularly in Second Amendment cases.

Existing court rules and procedures are not well tailored to this type of exercise. For example, in criminal cases, “the typical pre-trial discovery and hearing rules were crafted with forensic reports and suppression hearings in mind, not disputes about legal history.” (P. 30.) Nor do lawyers necessarily have the training, library resources, and time to conduct in-depth historical research. Indeed, the authors note that “Second Amendment challenges typically involve a criminal statute and thus place the initial demands of historical research on criminal defense lawyers and government attorneys—two groups for whom time and resources are at a premium.” (P. 32.)

Blocher and Garrett argue, nevertheless, that historical disputes should be treated the same as “disputes regarding any other area of technical or scientific evidence—relying on the parties but also, where needed, on experts.” (P. 11.) Ordinary procedural and evidentiary rules should apply, including the Federal Rules of Evidence. Appellate courts should defer to the lower courts as the finders of fact in the first instance and potentially remand cases if there was inadequate factual development below. (P. 11.)

Notably for historians, taking these recommendations seriously might mean a reduced reliance on amicus briefs at the appellate and Supreme Court level. In recent high-profile cases, such briefs have become the primary vehicle for historians to influence (or try to influence) constitutional decision-making. Instead, the emphasis might shift toward hiring historians as expert witnesses at the trial level. To be sure, there are some specialized contexts like voting rights where historians already frequently testify, but in other fields the practice might be new terrain.

On one level, Applying History as Law provides a helpful overview of how litigants and lower courts are responding to the historical turn in constitutional doctrine. On another level, the article is also deceptively provocative, weaving through its practical analysis a trenchant critique. As the authors suggest at various points, once one starts working through the practical questions it’s hard not to wonder whether the Supreme Court is asking “more of historical fact-finding than the legal process can legitimately deliver.” (P. 46.) If so, then the doctrine may (and perhaps should) eventually shift back towards standards that are more capable of application by lower courts.

In that sense, I found the article oddly reassuring. It seems that underneath the new political trappings of the Supreme Court’s recent twists and turns, there is also something else going on that is quite familiar in the annals of judicial history: justices from their lofty heights imposing rules upon the rest of the legal pyramid that do not really make sense for busy lawyers and trial judges who have to worry about deadlines, dockets, and trying not to get reversed on appeal.

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