What type of feedback would you like to send?
Abstract: At a time when many American legal scholars are turning away from courts, stressing the development of legal norms outside of the judiciary, Jennifer Widner offers us a contrasting perspective on the centrality of courts to democracy in her powerful history of the role of courts and judicial review in democratization in Africa, Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa (Norton & Company, Inc., 2001). As this review essay illustrates, Widner focuses on the role of one judge, a man who would see himself as embodying the role in Tanzania that Chief Justice John Marshall had played in the United States. As he worked to carve out a role for courts in the politics of Tanzania, Francis Nyalali focused especially on the importance of public support for the courts, on creating a constituency for judicial review. Creating a public that cared about courts, was, for Nyalali, an essential component of democratic government. Faced with an attack on judicial autonomy early in his tenure as Chief Justice of the High Court of Tanzania, Nyalali confronted a dilemma that has troubled other judges in other regimes. What should a judge do when he finds himself presiding in a system that is itself unjust? Is it best to resign so as not to confer legitimacy on an illegitimate system? Or is it better to stay on, and to ameliorate the system's faults to the extent he can? Nyalali chose instead a third path. He took his case to the political process, and worked to generate a constituency for judicial review in Tanzania. In this way, Widner's study illuminates a general point about courts and judges as strategic political actors. In this story the focus of strategic politics is not a particular external agenda; the objective instead is to create a political space for courts and judicial review. The notion of courts reaching out to the public runs directly contrary to some American perspectives on the judicial role. However, this essay argues, Widner helps us to see the way public opinion plays a role in judicial development, at least for courts at a comparatively early stage in institutional development. This history helps us to take seriously the question of whether a public constituency should be very much on the agenda of courts interested in maintaining their own legitimacy.
Abstract: This paper examines wartime as a form of time, arguing that assumptions about the temporality of war are a feature of American legal thought. Time is thought to be linear and episodic, moving from one kind of time (peacetime) to another kind of time (wartime) in sequence. In this way of thinking, war is by definition temporary, so that war’s impact on law is limited in time. This understanding of war and time, however, is in tension with the practice of war in 20th century U.S. history, for American involvement in overseas military action has been continuous.
Drawing upon works on the history of time, the paper argues that our conception of “wartime” is not inevitable. Instead, like other forms of time, it is a product of social life. The paper turns to World War II, which is thought of as a traditional war, with clear temporal limits. But this war is harder to place in time than is generally assumed, as the different legal endings to the war span over a period of seven years. The fuzziness in the war’s timing affects scholarship on rights and war, as scholars who believe themselves to be writing about the same wartime are not always studying the same years.
The difficulty in confining World War II in time is an illustration of a broader feature of the twentieth century: wartimes bleed into each other, and it is hard to find peace on the twentieth century American timeline. Meanwhile, as all twentieth century wars occurred outside U.S. borders, a feature of American military strategy has sometimes been to increase the engagement of the American people in a war, and at other times to insulate them. Isolation from war enabled the nation to participate in war without most citizens perceiving themselves to be in a wartime. The paper closes with a discussion of the way anxiety about temporality surfaces in contemporary cases relating to Guantánamo detainees, as the Supreme Court confronted the possibility that endless war might mean endless detention.
Abstract: Within hours after the collapse of the Twin Towers, the idea that the September 11 attacks had "changed everything" permeated American popular and political discussion. As the Introduction to this edited volume argues, in the period since September 11, the notion that 9/11 changed the nation and the world has been used to justify profound changes in U.S. law, public policy and foreign relations. Bringing together leading scholars of history, law, literature, and Islam, "September 11 in History" asks whether the attacks and their aftermath truly marked a transition in U.S. and world history or whether they are best understood as part of pre-existing historical trajectories. From a variety of perspectives, the contributors to this collection scrutinize claims about September 11. Essays range from an analysis of terms like Ground Zero, Homeland, and "the Axis of Evil" to an argument that the U.S. naval base at Guantanamo Bay has become a site for acting out a repressed imperial history. Examining the effect of the attacks on Islamic self-identity, one contributor argues that Osama bin Laden enacted an interpretation of Islam on September 11 and asserts that progressive Muslims must respond to it. Other essays by legal scholars focus on citizenship and the deployment of Orientalist tropes in categorizations of those "who look Middle Eastern," the blurring of domestic and international law evident in a number of legal developments including the use of military tribunals to prosecute suspected terrorists, the question of whether September 11 should cause a paradigm shift in international law, and the justifications for and consequences of American unilateralism. This collection ultimately reveals that everything did not change on September 11, 2001, but that some bedrocks of democratic legitimacy have been significantly eroded by claims that it did. Contributors include: Khaled Abou el Fadl, UCLA Law School; Mary L. Dudziak, USC Law School; Christopher L. Eisgruber, Woodrow Wilson School, Princeton University; Laurence R. Helfer, Loyola Law School; Sherman A. Jackson, Department of Near Eastern Studies, University of Michigan; Amy B. Kaplan, Department of English, University of Pennsylvania; Elaine Tyler May, Departments of History and American Studies, University of Minnesota; Lawrence G. Sager, University of Texas Law School; Ruti G. Teitel, New York Law School; Leti Volpp; American University Law School; Marilyn B. Young, Department of History, New York University.
Abstract: "From Jim Crow to Civil Rights" engages a theme that has been at the center of American constitutional theory since at least the 1930s: the role of judicial review in a democracy. Klarman situates himself between the heroic vision of the courts in works like Richard Kluger, "Simple Justice" and a negative view of courts in works like Gerald Rosenberg, "Hollow Hope." For Klarman, the courts are neither the hero of the story, generating needed social change, but neither are they the villain, deflecting the movement's energies from political struggles more likely to be successful. Along the way, Klarman strikes a blow at the countermajoritarian difficulty thesis, for Klarman imagines a Court without significant agency. The Court does not shape American society; instead the Court follows the flow of predominant cultural mores, reflecting changes that have their source elsewhere. This review essay focuses on a central theme in Klarman's book: his view of the relationship between law and social context. The essay examines two features of social context that Klarman sees as important: African American migration out of the South, and the impact of global developments - World War II and the Cold War - on the Court. Many African Americans migrated into segregated and soon-to-be-declining Northern cities. Because urban segregation was facilitated in part by law, the experience of migration helps to illuminate the way that social context is in part constructed by law, helping us to see that law does not simply reflect social context, but also shapes it. Klarman views war-related pressures as an important part of the social context affecting the Court; however, these issues drop out when he examines the impact of Court decisions. Because Brown and other landmark civil rights cases aided U.S. efforts to project a positive image of American democracy around the world during the Cold War, the cases had a broader impact, and arguably were more important in aiding democratization, than a purely domestic analysis of the cases would reveal.
Abstract: When President Dwight D. Eisenhower sent federal troops to Little Rock, Arkansas to enforce a school desegregation order at Central High School in the fall of 1957, more than racial equality was at issue. The image of American democracy was at stake. The Little Rock crisis played out on a world stage, as news media around the world covered the crisis. During the weeks of impasse leading up to Eisenhower's dramatic intervention, foreign critics questioned how the United States could argue that its democratic system of government was a model for others to follow when racial segregation was tolerated in the nation. Secretary of State John Foster Dulles was concerned about the impact of the crisis on the nation's international prestige. In the context of a cold war battle for the loyalties of the peoples of other nations, the image of American democracy as a just system of government was thought to be a critical national security issue. In this context, this paper argues, the impact of race discrimination on foreign relations, a "cold war imperative" for civil rights reform, was one of the factors motivating Eisenhower's handling of the Little Rock crisis. Yet the protection of the nation's image abroad would, at least in the short run, not require massive social change. The Supreme Court issued a strong statement in the Little Rock case, Cooper v. Aaron, affirming Brown v. Board of Education as the "supreme law of the land." However, as strong as the Supreme Court's opinion was in Cooper about the role of the courts in enforcing equality, the token desegregation upheld in Little Rock made clear that the "equality" ultimately achieved in that case was more formal than substantive. Still, Cooper aided the Eisenhower Administration's efforts to appease foreign critics. To the extent that foreign affairs was a motivating factor in Little Rock, formal equality -- the creation of an image of constitutional equality -- would be enough to satisfy the cold war imperative for civil rights reform.
Abstract: When President Dwight D. Eisenhower sent federal troops to Little Rock, Arkansas to enforce a school desegregation order at Central High School in the fall of 1957, more than racial equality was at issue. The image of American democracy was at stake. The Little Rock crisis played out on a world stage, as news media around the world covered the crisis. During the weeks of impasse leading up to Eisenhower's dramatic intervention, foreign critics questioned how the United States could argue that its democratic system of government was a model for others to follow when racial segregation was tolerated in the nation. Secretary of State John Foster Dulles was concerned about the impact of the crisis on the nation's international prestige. In the context of a cold war battle for the loyalties of the peoples of other nations, the image of American democracy as a just system of government was thought to be a critical national security issue. In this context, this paper argues, the impact of race discrimination on foreign relations, a "cold war imperative" for civil rights reform, was one of the factors motivating Eisenhower's handling of the Little Rock crisis. Yet the protection of the nation's image abroad would, at least in the Little Rock case, Cooper v. Aaron, affirming Brown v. Board of Education as the "supreme law of the land." However, as strong as the Supreme Court's opinion was in Cooper about the role of the courts in enforcing equality, the token desegregation upheld in Little Rock made clear that the "equality" ultimately achieved in that case was more formal than substantive. Still, Cooper aided the Eisenhower Administration's efforts to appease foreign critics. To the extent that foreign affairs was a motivating factor in Little Rock, formal equality -- the creation of an image of constitutional equality -- would be enough to satisfy the cold war imperative for civil rights reform.
Abstract: This volume interrogates law's role in constituting American borders. It has been a project of American Studies scholarship to explore American culture and history in relation to the rest of the world. But the global turn in American Studies raises new questions about the boundaries of the field, and of the reach of "America" itself. Once we view the United States in a global context, once territory - formerly the implicit boundary around American studies - is decentered, it becomes important to ask what the frame is around "American" studies, and to ask how, in a global context, U.S. borders and identities are constructed. Law is one window through which to take up the question of the construction of American borders. Law is an important technology in the drawing of dividing lines between American identities and the boundaries (or lack of boundaries) around American global power. Borders are constructed in law, not only through formal legal controls on entry and exit but also through the construction of rights of citizenship and noncitizenship, and the regulation or legitimation of American power in other parts of the world. Legal borderlands can be physical territories with an ambiguous legal identity, such as U.S. territories where the Constitution does not follow the flag, or Guantanamo. Their ambiguity seems to render them sites of abnormal legal regulation, placing them on the edge of the law. Legal borderlands can also demarcate ideological spaces or gaps, holes in the imagining of America, where America is felt to be "out of place," such as contexts where, in spite of American ideals of democracy and rights, violations of the law are routinized, such as in the space of the prison. The supposition that these spaces are the exception rather than the norm enables the continued belief that "the story of America is the story of the rule of law," for stories of the violation of the rule of law are explained through their location in those physical spaces or their placement in those ideological gaps. Law also helps define the boundaries of American national identity. That American identity and law are conflated is indisputable. But American ideology incorporates a particular vision of law, which is law as the rule of law, and law as the guarantor of democracy, equality, and freedom. The essays in this volume demonstrate that there is a necessary outside to the notion of the United States as the embodiment of the rule of law. American history is marked by episodes which can be simultaneously conceptualized as violations of the law and as actions sanctioned by law; violations of law are as fully a part of America as what we consider to be its democratic inside. Essays include Austin Sarat, "At the Boundaries of Law: Executive Clemency, Sovereign Prerogative, and the Dilemma of American Legality;" Devon Carbado, "Racial Naturalization;" Siobhan Somerville, "Notes Toward a Queer History of Naturalization;" Moon-Ho Jung, "Outlawing 'Coolies': Race, Nation, and Empire in the Age of Emancipation;" Nayan Shah, "Between 'Oriental Depravity' and 'Natural Degenerates': Spatial Borderlands and the Making of Ordinary American;" Linda K. Kerber, "Toward a History of Statelessness in America;" Maria Josefina Saldana-Portillo, "In the Shadow of NAFTA: Y tu mama tambien Revisits the National Allegory of Mexican Sovereignty;" Christina Duffy Burnett, "The Edges of Empire and the Limits of Sovereignty: American Guano Islands;" Andrew Hebard, "Romantic Sovereignty: Popular Romances and the American Imperial State in the Philippines;" Amy Kaplan, "Where is Guantanamo?" Teemu Ruskola, "Canton is not Boston: The Invention of American Imperial Sovereignty;" Lisa Yoneyama, "Liberation under Siege: U.S. Military Occupation and Japanese Women's Enfranchisement;" Susan L. Carruthers, "Between Camps: Eastern Bloc 'Escapees' and Cold War Borderlands;" David Campbell, "The Biopolitics of Security: Oil, Empire and the Sports Utility Vehicle;" Michelle Brown, "'Setting the Conditions' For Abu Ghraib: The Prison Nation Abroad."
Abstract: It is often said that in times of war, law is silent, but this essay argues that the experience of the twentieth century provides a sharp contrast to this old saying. It is not just that law was not silent during warfare, but that law provided a language within which war could be seen. War is not a natural category outside the law, but is in part produced by it. Across decades of conflict, law was a marker that defined for the nation some of those times when conflict would be contemplated as a war, and helped cabin other uses of force as peacekeeping, or other non-war actions. The laws of war, by identifying forms of warfare that crossed the humanitarian line, also helped carve out forms of warfare that were right and noble. It was in the realm of international law that law was turned to with utopian hopes more than once during the century, first to outlaw war itself, and then the more modest, but still ill-fated, quest to create a world body that would broker disputes between nations and avoid the inevitability of war. If law helped to make war, war also made law in the twentieth century. While it has been common to see war's impact on American legal history as episodic, this essay argues instead that the impact of war and national security was central and continuing. War is the mother of states, political scientists have argued. As an engine of statebuilding, war also fueled the development of law related to American statebuilding. Government programs and regulations created during a war did not go away but were drawn upon afterward to serve new purposes. In this way, war-related legal developments became entrenched. The Supreme Court was affected by wartime pressures. While the beginnings of what is sometimes called the New Deal revolution happened before the U.S. entered World War II, caselaw on Congressional power was consolidated and extended during the war. When the Court turned to individual rights, the story has not been a simple one of a pendulum swinging between rights and security. Instead, security concerns often informed the Court's jurisprudence, but security might be advanced by contracting, expanding or modifying rights, depending on the context. In Brown v. Board of Education, for example, racial discrimination was an international embarrassment, and expanding rights enhanced national security. The story of Brown helps us to see another important way that law and war together made America during the twentieth century. Projecting an image of American justice can be central to maintaining a conception of American democracy - a story of America for the world. This was seen as essential to U.S. prestige and national security during the Cold War. This became a central issue again after September 11, especially after the exposure of abuses at the hands of Americans at Abu Ghraib. The U.S. seemed to retreat from subordination to legal regulation, as if law itself would undercut American security. But the story of the war, and conceptions of its lawfulness, informed the world's understandings of American identity in a way that no president could control. The 12/6/06 version includes the draft bibliographic essay.
Abstract: This Article is a work of transnational legal history. Drawing upon new research in foreign archives, it sheds new light on the life of Thurgood Marshall, exploring for the first time an episode that he cared very deeply about: his work with African nationalists on an independence constitution for Kenya. The story is paradoxical, for Marshall, a civil rights legend in America, would seek to protect the rights of white landholders in Kenya who had gained their land through discriminatory land laws, but were soon to lose political power. In order to understand why Marshall would take pride in entrenching property rights gained through past injustice, the Article tells the story of the role of constitutional politics in Kenya's independence. While Sub-Saharan Africa is often dismissed as a region with constitutions without constitutionalism, the Article argues that constitutionalism played an important role in Kenya's independence. Against a backdrop of violence, adversaries in Kenya fought with each other not with guns but with constitutional clauses. The resulting Kenya Independence Constitution would not function as an American-style icon, but in that historical moment, constitutional politics aided a peaceful transition. In this context, Marshall built compromise into his bill of rights for Kenya to keep the parties together at the table. Thurgood Marshall's role in Kenya's independence was limited, of course, but in following this story we gain an entirely new perspective on a major figure in American law. Before he began writing constitutional law as a Justice in the United States, Marshall played the role of a framer, crafting constitutional principles in the first instance. From the intersecting narratives of Marshall's travels and Kenya's constitutional development, we can also see constitutionalism at work in new ways, as constitutional politics functioned as a peace process. The Article also provides an historical example of a process more familiar in our own day: the role of American lawyers in constitution writing and nation building overseas.
Abstract: A rich, but unexpected, source for research in African constitutional history is records of the U.S. Department of State at the National Archives. Because the State Department followed African constitutional politics, particularly as African nations moved toward independence in the 1950s and 60s, U.S. diplomatic records document African constitutional developments, and sometimes include local sources, such as competing constitutional proposals. Drawing upon her own research on constitutional politics in Kenya in the early 1960s, the author describes the sort of primary sources that might be found in U.S. diplomatic records. Because these sources are rarely used by legal scholars, this essay provides a practical guide to constitutional history research in U.S. diplomatic records.
Abstract: When Birmingham, Alabama Police Commissioner Bull Connor unleashed police dogs and fire hoses on civil rights demonstrators in the spring of 1963, his brutality shocked the nation. News reports with graphic photos also blanketed the international press, reinforcing international concern about racial justice in America. As it had during the Truman and Eisenhower years, the Soviet Union took advantage of the propaganda value of these images, and greatly increased its focus on American racial problems in anti-American broadcasts and print media. President John F. Kennedy was highly attuned to the impact of racial incidents on the U.S. image abroad. Birmingham created a crisis of greater magnitude for the Administration than had the Freedom Rides or James Meredith's admission to the University of Mississippi. Birmingham hit the international press as African leaders convened for a unity conference in Addis Ababa, Ethiopia. As African heads of state turned their attention to Birmingham, contemplating whether such incidents might cause a break in U.S.-African relations, the Kennedy Administration focused on damage control. The stakes were high. Protecting the image of American democracy had national security implications during the cold war years. In the early 1960s, following admission of newly independent African states to the U.N., it had important consequences for U.N. politics as well. Civil rights activists risked their lives to put racial justice on the nation's agenda in the 1960s, and civil rights reform during those years was certainly influenced by factors having nothing to do with diplomacy. Yet this paper argues that Kennedy Administration civil rights policy, even as it was pushed by the movement, was framed with the impact of civil rights on foreign affairs among the Administration's most pressing concerns.
Abstract: In Thurgood Marshall's office after his death, draped over an armchair in the morning sun, was a cloak made of monkey skin. The cloak was from Kenya, and was among the Justice's most treasured possessions. For years, Marshall told his friends and his law clerks stories about Kenya. The cloak was a gift, he told them, from the time he was made an honorary tribal chief. But even those closest to Marshall knew little about the Kenya adventures he so keenly remembered. This short essay illuminates Marshall's work on a Bill of Rights for Kenya in the early 1960s as an exercise in constitutional borrowing. When Marshall went to Kenya he looked over just about every constitution in the world just to see what was good, and he told an interviewer that the United States Constitution was the best I've ever seen. But at a conference in London on the Kenya constitution, he offered a draft bill of rights for Kenya that had no American constitutional language in it. The rights Marshall embraced as ideal, at least for an emerging African country, drew most extensively from the Universal Declaration of Human Rights, and parts were based on the constitutions of two newly independent countries, Nigeria and Malaya. Marshall's American sensibility appeared in his document most clearly in his assumption that independent courts would enforce the bill of rights, and his emphasis on equality, something he still hoped to realize in his own country.
Abstract: At the height of the McCarthy era, when Congressional committees were exposing "communist infiltration" in many areas of American life, the Supreme Court was upholding loyalty oath requirements, and the executive branch was ferreting out alleged communists in government, the U.S. Attorney General filed a pro-civil rights brief in what would become one of the most celebrated civil rights cases in American history: Brown v. Board of Education. Although seemingly at odds with the restrictive approach to individual rights in other contexts, the U.S. government's participation in the desegregation cases during the McCarthy era was no anomaly. Rather, by the early 1950s, American leaders had come to believe that civil rights reform was crucial to the more central U.S. mission of fighting world communism. Based in part on diplomatic research in State Department archives, this article demonstrates that Cold War motives influenced the U.S. government's involvement in Brown and other cases. Originally published in 1988 in the Stanford Law Review, this article was the first publication to use State Department records to examine the relationship between Cold War foreign relations and civil rights in the United States. Diplomatic records illustrate the growing concern among American diplomats and political leaders after World War II about the impact of race discrimination on the U.S. image around the world, and the global critique that the United States could not be an effective "leader of the free world" as long as the nation blatantly denied rights to its own peoples. This research confirmed the suspicions of Derrick Bell and others who argued before these records were opened that foreign affairs affected U.S. government civil rights policies, and it helped illuminate the world-wide impact of the civil rights movement. This research was expanded upon in Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (Princeton University Press, 2000), and in books and articles by other scholars. The larger body of work on race and foreign relations is an important aspect of efforts by historians to "internationalize" the study of American history. Thanks to the Stanford Law Review, the article is now available on SSRN so that it will be easily accessible on-line.
Abstract: Thurgood Marshall became a living icon of civil rights when he argued Brown v. Board of Education before the Supreme Court in 1954. Six years later, he was at a crossroads. A rising generation of activists were making sit-ins and demonstrations rather than lawsuits the hallmark of the civil rights movement. What role, he wondered, could he now play? When in 1960 Kenyan independence leaders asked him to help write their constitution, Marshall threw himself into their cause. Here was a new arena in which law might serve as the tool with which to forge a just society. In Exporting American Dreams, Mary Dudziak recounts with poignancy and power the untold story of Marshall's journey to Africa. African Americans were enslaved when the U.S. constitution was written. In Kenya, Marshall could become something that had not existed in his own country: a black man helping to found a nation. He became friends with Kenyan leaders Tom Mboya and Jomo Kenyatta, serving as advisor to the Kenyans, who needed to demonstrate to Great Britain and to the world that they would treat minority races (whites and Asians) fairly once Africans took power. He crafted a bill of rights, aiding constitutional negotiations that helped enable peaceful regime change, rather than violent resistance. Marshall's involvement with Kenya's foundation affirmed his faith in law, while also forcing him to understand how the struggle for justice could be compromised by the imperatives of sovereignty. Marshall's beliefs were most sorely tested later in the decade when he became a Supreme Court Justice, even as American cities erupted in flames and civil rights progress stalled. Kenya's first attempt at democracy faltered, but Marshall's African journey remained a cherished memory of a time and a place when all things seemed possible. Posted on SSRN are the Table of Contents and Introduction to the book. Marshall's draft bill of rights for Kenya appears in full in the book itself. Reviews and book information can be found at the author's book blog, Exporting American Dreams.
Abstract: This essay, written for a symposium issue of the Quinnipiac Law Review on the work of Mark Tushnet, takes up Tushnet's writings on Thurgood Marshall. Tushnet's body of scholarship on Marshall includes two books, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961, and Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991; an edited collection: Thurgood Marshall: His Speeches, Writings, Arguments, Opinions and Reminiscences; and many articles and essays. Tushnet follows Marshall from his early career as a civil rights lawyer through his service on the United States Supreme Court, focusing more than other biographers on Thurgood Marshall as a lawyer, and paying particular attention to Marshall's conception of the rule of law.
The essay explores Marshall's understanding of the rule of law, bringing in the example of Marshall's confrontation with Kenya's first president, Jomo Kenyatta, in 1963, and the tension between Marshall's embrace of Kenya's new leaders, with whom he worked on Kenya's independence constitution, and his concern about their failure to protect the rights of Kenya's Asian minority. In this episode, the rule of law appears as more than fairness and consistent application of legal principles, but also as a form of politics. This ties Marshall's work in Africa in with the conception of law in Tushnet's broader body of work.
Abstract: The Bush administration has been criticized for departures from the rule of law, but within the administration law was not ignored. Instead it was seen variously as a tool and as a potential threat to the operation of the executive branch. Two narratives compete for attention. In an era when the legality of torture was openly debated, the deployment of law in wartime seemed the most immediate issue. At the same time, however, a decades-long conservative movement to change American law was both significantly furthered and complicated, as Supreme Court appointments moved the Court to the right, but the lack of a common jurisprudence hampered the consolidation of a new conservative constitutional vision. More conservative courts might seem a safe haven for the president, less likely to challenge executive branch actions, but the Bush administration had a complicated relationship with courts. The administration sought out the courts to further aspects of a social policy agenda, such as restricting abortion rights and gun control. But when it came to challenges to the executive branch itself, the Administration used creative means to avoid court jurisdiction, including constitutional theories about executive power. Law was both a sword and a shield: it was a tool used to further some conservative objectives, and it was a shield intended to protect executive autonomy.
Abstract: The conventional understanding of the history behind the passage of the Civil Rights Act of 1964 leaves out an important issue: the role of foreign relations. Legal scholarship on the basis for federal legislative power to regulate civil rights often focuses on the question of whether the Commerce Power was an appropriate basis for civil rights legislation. Congress turned to the Commerce Power because its earlier attempt to regulate race discrimination by private actors under the enabling clauses of the Thirteenth and Fourteenth Amendments was struck down by the Supreme Court. Concerned about that precedent, in the 1960s the Kennedy Administration and members of Congress saw the Commerce Clause as a promising source of congressional regulatory power. Evidence about the impact of race discrimination on interstate commerce was brought before the Senate Commerce Committee, and legislators debated whether the bill was really about commerce, or really about a moral issue, before passing the bill. This story leaves out an important issue, for a key Kennedy Administration witness before the Committee was Secretary of State Dean Rusk whose focus was neither commerce nor morality, but foreign affairs. The nation had a crucial stake in civil rights reform, Rusk argued, because race discrimination hampered U.S. relations with other nations during the crucial period of the Cold War. There was widespread international media coverage of brutal resistance to the civil rights movement, undermining U.S. prestige around the world, with hampered U.S. Cold War leadership. Rusk urged Congress to pass the civil rights bill to safeguard the nation's standing in the world, and he suggested that foreign relations concerns supported a broad reading of Congressional power. In essence, national security required a recalibration of federalism. This history can inform contemporary debates about the scope of Congressional power. In recent years, Congress' regulatory power under the Commerce Clause has been constricted, and Congress' power under the civil rights enabling clauses remains uncertain. Recovering the fuller national stake underlying the Civil Rights Act of 1964 can help us with the question of the proper scope of national authority over civil rights today.
Abstract: In 1954, in the midst of the Cold War, school segregation was thought by many to be un-American. Brown v. Board of Education, a major international story, was thought of as a blow to Communism because the case would enable peoples of color around the world to believe that democracy was a just system of government. American legal history texts often discuss Brown and the Cold War in separate passages, as if they were unrelated to each other, however this essay argues that Brown is best understood as part of Cold War history. Cold War concerns help explain the U.S. government's role in the case, for example. The Justice Department's brief in Brown argued that school segregation undermined U.S. prestige in other countries, harming U.S. foreign relations. The Supreme Court had been grappling with Cold War concerns in its McCarthy-era cases, so these arguments were made to a receptive audience. Formal legal change in Brown aided the U.S. image abroad, whether or not actual desegregation followed. While some treatments of Brown see the case as an illustration of the inevitability of legal progress, the Cold War context helps us to see Brown's historical contingency. This history also illustrates the fact that seemingly domestic American histories have international dimensions, and it underscores the importance of internationalizing American legal history.
Abstract: This essay, written for a broad scholarly audience, surveys the history and scholarship on the U.S. Constitution and the courts from 1945 to the end of the twentieth century. The essay focuses on iconic moments that have influenced constitutional theory in the second half of the twentieth century, particularly Brown v. Board of Education, Roe v. Wade, and the memory of the New Deal era. It briefly surveys important lines of argument about the courts, including the countermajoritarian difficulty, the question of whether courts offer a "hollow hope" of social change, and the scholarly reaction to Bush v. Gore. The essay appears in a collection on a broad range of issues in post-1945 U.S. history, featuring the work of important U.S. historians, including Ellen Schrecker, Kevin Gaines, Nelson Lichtenstein and Linda Gordon. As an introduction to the rich history of the constitution and the courts since 1945, the essay may be of greatest interest to scholars in fields other than law, academics from other countries who are interested in America law, and graduate students.
Abstract: This study explores the impact of foreign affairs on U.S. civil rights policy during the early years of the Cold War (1946-1968). Following World War II, the U.S. took on the mantle of world leadership, yet, at the same time, the nation found itself subject to increasing international criticism. American racism was seen as the nation's Achilles heel. U.S. allies, as well as critics, questioned whether civil rights abuses undermined our nation's international image, and interfered with its leadership of the free world. How could American democracy be held out as a model for others to follow, particularly newly independent nations in Asia and Africa, when within U.S. borders persons of color were lynched, were segregated in schools and public accommodations, and were disenfranchised? When the Soviet Union made American racism a principle anti-American propaganda theme in the late 1940s, civil rights in America became a terrain upon which an important Cold War ideological battle would be waged. Based on extensive multi-archival research, this study argues that concerns about the impact of race discrimination on U.S. foreign relations led presidents from Truman through Johnson to pursue civil rights reform as part of their broader Cold War strategies. While foreign affairs was only one of the factors motivating civil rights reform during these years, it was a crucial factor that helps us to understand why a period of domestic repression - the Cold War - was also a period during which some civil rights reform would take hold.
Abstract: On August 28, 1963, as participants in the historic March on Washington made their way to the Lincoln Memorial, individuals in several countries around the world took to the streets and marched in support. U.S. citizens abroad and citizens of other nations, some with ties to the U.S. civil rights movement and many without, thousands marched to show their solidarity with those demonstrating in Washington. March on Washington activities in Europe were in large part due to the efforts of James Baldwin and other African Americans in Paris. Baldwin called a meeting at a Paris nightclub that ultimately led to a petition drive that quickly spread all over Europe. Hoping to support the civil rights movement although living in Paris, African American jazz musicians, actors and others circulated a petition in the international editions of U.S. papers. In Paris, one week before the Washington March, they held a walk to the U.S. Embassy, and over 560 people deposited petitions in support of the March. That same day, U.S. citizens and others called upon U.S. diplomatic posts in other European cities, registering their support for the March. The focus on U.S. diplomatic posts was not simply due to the fact that these were U.S. government offices abroad. It was also due to the fact that these activists believed that race discrimination harmed U.S. foreign affairs, and they hoped that the international impact of the civil rights movement would spur change at home. Apparently unrelated to these efforts, and uncoordinated with each other, on the date of the March on Washington, the Mayor of Kingston, Jamaica led a march of 2500 in that city. 1200 to 1400 marched on the U.S. Consulate in Amsterdam. In Oslo, Norway, one hundred people marched through heavy rain to present a petition to the U.S. Embassy. Demonstrators with picket signs protested at the U.S. Embassy in Ghana. The Nassar government ensured that no large demonstration would take place in Cairo, Egypt. Hundreds of police officers were stationed in the city early in the morning, and they stopped all but two of the thirteen marchers willing to face this police presence from approaching the U.S. Embassy. These actions pleased U.S. government representatives. As an Embassy officer put it, the government's handling of this protest was in line with the assurances to the Embassy. The U.S. government reacted to the March on Washington by trying to affect the message projected by the marchers, and the way that message was perceived overseas. Efforts to manage the international impact of the March were consistent with broader U.S. efforts during the cold war to turn the story of race in America into a story of the superiority of democracy as a system of government. Accordingly, through efforts to influence the content of speeches, and a pre- and post-March propaganda campaign, the Administration did its best to cast the March as a story about democratic political participation, rather than as a critique of government inaction on civil rights.
© 2010 Social Science Electronic Publishing, Inc. All Rights Reserved. FAQ Terms of Use Privacy Policy Copyright This page was served by apollo1 in 0.172 seconds.
