Recovering the Legal History of the Confederacy

Although the government of the Confederate States of America has been formally treated as a legal nullity since 1878, from February, 1861 to April, 1865 the Confederacy was a real government, with a Constitution, a Congress, district courts, and administrative offices. This Article seeks to recover the legal order of the Confederacy in its robust state, before the prospect of its obliteration came to pass. The Article explores the question why certain southern states would have considered seceding from the United States, and forming a separate nation, in late 1860 and early 1861. It then turns to the legal order of the Confederacy that was erected after secession. It focuses on two characteristics of that legal order: its architecture, including the drafting of the Confederate Constitution, the establishment of Confederate district courts, and the failure of the Confederate Congress to organize a Supreme Court for the Confederacy; and the central legal issues with which the Confederate government was preoccupied. The Article concludes that in the minds of contemporaries, the outcome of the Civil War and the dissolution of the Confederacy that accompanied it represented a transformative phase in American history, in which the way of life that the Confederacy symbolized was confined to oblivion

The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America

As the number of issues perceived as having First Amendment implications continues to grow, and the coterie of potential beneficiaries of First Amendment protection continues to widen - including not only the traditional oppressed mavericks and despised dissenters but some rich and powerful members from the circles of political and economic orthodoxy - alarms have been sounded. Another period of stocktaking for free speech theory appears to be dawning, and some recent commentators have proposed a retrenchment from the long twentieth- century progression of increasingly speech-protective interpretations of the First Amendment. At the heart of the retrenchment literature lies the belief that some forms of expression are incompatible with the aspirations of contemporary Americans for a civic-minded, decent, compassionate, and responsible society. One might attribute to the contributions of retrenchment advocates an implicit questioning of the special constitutional and cultural status of free speech in America. Such a reading invites parallels between the perspective of retrenchment commentators and a much older view of the status of speech. That view was embodied in an often anthologized attack on Justice Holmes\u27s dissent in Abrams v. United States made by John Wigmore in 1920. In his attack Wigmore distinguished between Freedom of Speech and Freedom of Thuggery, and maintained that a civilized society such as the United States, whose members enjoyed ample freedoms, had the capacity to distinguish those utterances that enhanced the body politic from those that corroded it. Wigmore suggested that American citizens had a moral, as well as a legal, right to repress speech that passed the boundaries of civilized interchange and accordingly threatened the fabric of the community. I am not primarily interested here in exploring the parallels between Wigmore\u27s perspective on free speech and that exhibited by current retrenchment advocates. Nor is my central concern with the saliency of various arguments advanced in retrenchment commentary. The recent proposed retrenchment of libertarian free speech theory has stimulated me to consider a broader issue: How did free speech, and the First Amendment, come to be treated as special, both constitutionally and culturally, in America

Transforming History in the Postmodern Era

A Review of The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy by Morton J. Horwit

Cabining the Constitutional History of the New Deal in Time

A Review of William E, Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevel