Suchergebnisse

American constitutional lawyers and legal historians routinely assert that the Supreme Court's state action doctrine halted Reconstruction in its tracks. But it didn't. Rethinking the Judicial Settlement of Reconstruction demolishes the conventional wisdom - and puts a constructive alternative in its place. Pamela Brandwein unveils a lost jurisprudence of rights that provided expansive possibilities for protecting blacks' physical safety and electoral participation, even as it left public accommodation rights undefended. She shows that the Supreme Court supported a Republican coalition and left open ample room for executive and legislative action. Blacks were abandoned, but by the president and Congress, not the Court. Brandwein unites close legal reading of judicial opinions (some hitherto unknown), sustained historical work, the study of political institutions, and the sociology of knowledge. This book explodes tired old debates and will provoke new ones.

Frontmatter -- Contents -- Acknowledgments -- 1 Introduction -- 2 Slavery as an Interpretive Issue in the 39th Reconstruction Congress: The Northern Democrats -- 3 Republican Slavery Criticism -- 4 The Supreme Court's Official History -- 5 Dueling Histories: Charles Fairman and William Crosskey Reconstruct "Original Understanding" -- 6 Recipes for "Acceptable" History -- 7 History as an Institutional Resource: Warren Court Debates over Legislative Apportionment -- 8 Constitutional Law as a "Culture of Argument": Toward a Sociology of Constitutional Law -- 9 Conclusion -- Notes -- Bibliography -- Index

American liberalism has long been divided between early "classic" and modern forms, a transformation associated with the rise of the social welfare state and the New Deal. The long-running critique of Hartzian consensus theory has left intact that division, which is likewise expressed in literature on the Reconstruction Amendments. This article offers a new staged theory of American liberal development in the nineteenth century, accomplished through the prism of public law. Newly elaborating and theorizing the governing frameworks of the antebellum "well-regulated society" and reading judicial disagreement in the Slaughter-House Cases (1873, 83 U.S. 36) in terms of these institutional frameworks, I show how the dual liberty paradigm of the well-regulated society was rearranged in Bradley's dissent. By elevating a conceptual split between the dissents of Field and Bradley and by tracing in Bradley's dissent the reorganization of police powers jurisprudence, I illuminate the fashioning and rapid diffusion of modern rights individualism.