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Posted Nov. 30, 2010

White Takes Fresh Look at Legal History in Forthcoming Three-Volume Series

G. Edward White

Leading constitutional law scholar G. Edward White recently posted online the first book draft of his planned three-volume series, “Law in American History.”

“The next volume will begin with the Reconstruction period and go through the 1920s,” said White, the David and Mary Harrison Distinguished Professor of Law. “The third volume will cover the remainder of the 20th century.”

White’s 14 published books have won numerous honors and awards, including final listing for the Pulitzer Price in history. He has written biographies of Oliver Wendell Holmes, Earl Warren and Alger Hiss, as well as books examining tort law, the Constitution and the New Deal, and the Marshall Court.

His first book in the “American History” series is scheduled for publication in fall 2011 by Oxford University Press.

What questions did you hope to answer in writing a multi-volume history on law in American history?

The general question that I’m exploring in the volumes is how has law fitted into the central themes of American history. For example, in the first volume I identify three central themes: European settlers’ displacement of indigenous Amerindian tribes from land they occupied on the American continent, the importation of African slavery into America, and the growth of American territory and westward dispersion of non-Amerindian populations. I explore how law both responded to and facilitated those themes, and suggest that the Civil War can be understood as the culmination of tensions among them.

In writing this book, how did you balance examining laws or legal opinions as legal documents versus historical documents?

Since the book is fundamentally about American history, of course historical context matters. But I don’t consider law as simply a cultural artifact, as one might consider early 19th-century art or music. I’m interested in how law and legal institutions came to occupy so central a place in American culture — how we came to define ourselves as a society grounded in the “rule of law” and why lawyers, and legal authorities, have played such an important role in shaping American political life.

In researching this book, did anything surprise you?

I came to the book knowing a fair amount about some topics of early American history and very little about others.  Two of the topics about which I knew very little were the colonial years and the years leading up to and including the Civil War.  In researching the former topic, I became acquainted with some very illuminating scholarship on the aboriginal tribes of North America that has made use of the work of ethnographers and anthropologists. It is now possible to recreate the practices and attitudes of Amerindian tribes in the years when they first encountered European settlers. Looking at colonial British America  in the 17th and early 18th centuries from the perspectives of the tribes as well as the settlers transforms the way one thinks of the period. Instead of searching for colonial themes that are harbingers of subsequent developments in the history of post-colonial America, one comes to see the colonial years as an utterly different phase, one marked by transatlantic encounters between radically different civilizations in which post-colonial American law played very little part.

With respect to the Civil War and the decades leading up to it, I had not appreciated how central the displacement of Amerindian tribes from a vast area stretching from the Atlantic coast to the trans-Mississippi west had been to the development of early 19th-century sectional tensions that the major American legal institutions were ultimately unable to contain. The sectional animosities caused by the flourishing of slavery in the South, and the growing resistance to slavery in the North, were made possible because the United States acquired a vast amount of public lands between 1803 and the early 1850s, and as population spread westward over those lands, it did so in the form of sectional patterns, with slaveholding populations moving into areas suitable for the growth of warm-weather staple crops such as cotton, and wage-labor populations moving into areas where the growing season could not accommodate such crops.

The opening up of land formerly occupied by tribes thus rejuvenated slave labor, and African slavery, in the southern regions of the trans-Appalachian and trans-Mississippi west, and the flourishing of slave labor in those regions meant that immigrant populations from Europe, which came to America in great numbers from the 1830s through the 1850s, largely settled in northern, wage labor states. By the 1850s it was clear that the non-slaveholding states would eventually outnumber the slaveholding states in the Union; but it was also clear that slavery was economically viable, and could be expected to flourish in the United States for some time. Both regions thus became extremely concerned about the future of slavery in the western federal territories, which were expected to join the Union at some point, and about the eventual future of slavery in a South that would eventually become a minority region in American politics.

When Lincoln’s election in 1860 demonstrated that a party morally opposed to slavery, openly resistant to the Supreme Court’s Dred Scott decision (which declared its abolition in federal territories unconstitutional), and dedicated to resisting slavery’s implementation in federal territories, could control the presidency and Congress, some southern states concluded that the only way they could preserve slavery was to secede from the Union. Although much of that history is familiar, I was struck with the connections between the Civil War, Amerindian displacement and the early importation of African slaves into America. It is as if the Civil War represented the lancing of some cultural boils that had been building up over time.

Did you find yourself reassessing your own opinions? In what instance(s)?

Several years ago, when I first signed up for this project, I felt that the tilt of historiography in American legal history was toward social history and a conception of law as largely reflective of cultural trends. I initially thought of the project as seeking to restore the importance of legal ideas and institutions as causal agents. When I came to researching and writing this volume, I found that the historiographical landscape had shifted, with more monographic work having appeared that emphasized the role of legal ideas.  More fundamentally, I found that established divisions between social and intellectual history, and between models of causation treating law as a mirror of society and models emphasizing the autonomy of law and legal institutions, had broken down. The model of causation I employ in the volume posits a reciprocal relationship between law and its historical context, in which law both reflects and influences changes in the larger culture.  This has freed me up, in a sense, to focus on central historical themes on the assumption that law was connected to them, but in a multidimensional fashion.

To what extent did land — as property, as resource, as a symbol — shape American laws and character?

I hadn’t done a great deal of research on early American land use before writing this volume.  As a result I hadn’t fully grasped the centrality of land as a defining element of the experience of Americans from the colonial years through the Civil War. From the outset the abundance of available land in America for settlers, which came about because of the deleterious effects of interactions with settlers on aboriginal tribes, sharply distinguished colonial America from Europe. Land ownership in colonial America became not only a means of subsistence, but a basis of accumulating wealth and status. The abundance of land and the small number of agricultural laborers in America was one of the major reasons African slavery was introduced on the American continent. Agricultural householding, which presupposed the ability of most settlers to acquire and cultivate land, became the dominant activity in all regions of early 19th-century America. The significance of land was further increased by the massive purchases of territory from other nations that the United States government initiated in the first half of the 19th century. The ability to acquire, work on and make productive use of land was the central reason why most early 19th-century immigrants came to America. Competing models of land use were an important sense of the sectional tension that led to the Civil War. Land was an enormously important cultural theme. And law was closely connected to all features of land ownership and use, from the recording acts that established procedures for perfecting land titles to the statutes and policies that governed the disposition of public lands.

The concepts of individual rights and liberty evolved during this period, and set up some of the major conflicts in American history. How did law contribute to this evolution?

One of the things I learned in writing this volume was how different the conceptions of individual rights and liberties held by colonial and Revolutionary Americans were from the conceptions that would develop in the later 19th and 20th centuries, and which to some extent we take for granted today. “Liberty” in the colonial and Revolutionary years primarily meant freedom from oppressive government, whether that government was a colonial legislature, the Privy Council, or Parliament. Early Americans tended to see their “liberties” as affected by what we would call issues of sovereignty, that is, issues raising questions of their allegiances. They did not, for the most part, conceive of issues of liberty as arising from discrimination on the basis of social status, gender, race or religion. On the contrary, they took distinctions based on those categories as natural and inevitable.  They did not have expansive conceptions of freedom of speech, and they were comfortable with regulations of conduct in the realm of morals, such as the criminalization of adultery and fornication, that later generations would see as raising privacy issues.

Nonetheless “liberty,” as they defined it, was vitally important for the generations who declared independence from Great Britain and wrote the American Constitution. Independence, for them, was about their having the same liberties of English subjects, such as not being subjected to arbitrary taxation, as were enjoyed by residents of England. When British policies after the 1760s directly affected their mercantile commerce and restricted their westward settlement, colonial British Americans became estranged from Parliament, where they were not represented, and eventually compiled a list of grievances against King George III. And when, after the Revolution, unicameral American state legislatures began to cater to debtors at the expense of creditors and to pass their own versions of oppressive taxation schemes, the framers of the Constitution established a new federal government with mechanisms to curb the power of factions in legislatures so that the liberties of individuals would not become trampled by demagogic versions of republicanism. In both instances legal documents, by articulating and protecting American “liberties,” would be important.

In what ways was the Civil War a culmination of many themes in American legal history? How did it set the stage for the next 150 years?

I previously mentioned how I came to see the Civil War as an illustration that the central themes of early American history had come, by the middle of the 19th century, to foster abiding cultural tensions. Those tensions could not be alleviated by Congress, which sought to fashion several “compromises” designed to preserve a precise balance between slaveholding and non-slaveholding states in the Union, by the major political parties, both of which splintered under the pressures of slavery and antislavery ideologies, or by the Supreme Court, which allowed itself to be drawn into passing on the constitutionality of slavery in federal territories and the citizenship status of African-American slaves, and rendered a decision on those issues, in the Dred Scott case, that was so patently protective of the South and slavery that it invited reversal by the political process. The failure of all the major American legal institutions to resolve the sectional tensions surrounding slavery meant that the dissolution of the Union, and civil war, was the only “solution” to those tensions. In that sense the Civil War was the end of a phase in American history that extended back to the early 17th century.

The Civil War can also be seen as an introduction to the next phase of American history, in which American society embraced modernity, initially reluctantly and eventually enthusiastically, in the years between the 1870s and the 1920s.  By modernity I mean a world characterized by advanced industrial capitalism, increased participatory democracy, the weakening of a hierarchical class-based social order, and the emergence of secular scientific methodologies as authoritative techniques of intellectual inquiry.  Although none of those characteristics of American society was fully in place during the Civil War, the war itself represented Americans’ first experience with “total war,” in which the civilian population as well as professional soldiers were altogether immersed in the war effort; in which “modern” technologies, ranging from ironclad naval vessels to the transporting of troops on railroads, were employed by both the Confederate and Union armies; and in which very large numbers of the population were killed or wounded. The impact of the war, and the subsequent “Reconstruction” of the South and refashioning of the Union, helped create a new political culture, a more industrialized economy, and, eventually, a new set of attitudes about education, social mobility and even the sources of knowledge. None of those attitudes were to become orthodoxy until the 1930s, but their presence, and the resistance of large segments of the American population to them, would be one of the major themes of late 19th- and early 20th-century American history.

What major themes do you hope to tackle in volumes two and three?

The second volume will be organized around the themes of modernity and resistance to them, which played out in a variety of legal and cultural issues, from the post-Civil War amendments to the Constitution and their interpretation by the Supreme Court, to the growth and refinement of segregation in race relations, to the gradual shift from “pre-modern” to modern conceptions of law and judging.

The third volume will emphasize the relationship between American domestic law and international affairs in the 20th century. From the perspective of the second volume, the 20th century, from the 1930s on, represents the triumph of modernist theories of causal agency and “democratic” theories of law and politics. As the idea that the discretionary acts of humans holding power represented the primary locus of causal agency in the universe, rival theories of social organization emerged from this premise — totalitarian and democratic theories. As the United States surfaced in the international arena as the primary arsenal and defender of democracy, American legal thought was reoriented to emphasize the importance of humans as interpreters of legal sources. The result was a succession of 20th-century jurisprudential controversies within American law, while at the same time an effort to identify the American legal system as the world’s best hope against alternative regimes in which the “rule of law” was synonymous with the dictates of officials in power.

How does writing this kind of book inform your teaching?

I teach only one history course, and I do that on purpose. In my view law students are not graduate students in history, and my role is to find common ground between the academic and professional issues that are important to me and the academic and professional issues that are important to them.  I have found that the best source of that common ground is doctrinally oriented courses that emphasize analytical training, which I think is what is distinctive about American legal education. When I attempt to teach topics on which I am currently writing, I find that I am regularly concerned with specialized substantive and methodological issues that are of interest only to a small percentage of students. My teaching seems to be more effective when both the students and I approach a subject as generalists. Teaching legal subjects such as constitutional law and torts, on which I have written only occasionally, thus constitutes a “break” from historical research for me, one that I enjoy a lot and feel is in keeping with my being on a law faculty. 

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