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History of the U.S. Supreme Court  

Timothy S. Huebner

The Supreme Court of the United States stands at the head of the nation’s judicial system. Created in Article III of the Constitution of 1787 but obscured by the other branches of government during the first few decades of its history, the Court came into its own as a co-equal branch in the early 19th century. Its exercise of judicial review—the power that it claimed to determine the constitutionality of legislative acts—gave the Court a unique status as the final arbiter of the nation’s constitutional conflicts. From the slavery question during the antebellum era to abortion and gay rights in more recent times, the Court has decided cases brought to it by individual litigants, and in doing so has shaped American constitutional and legal development. Composed of unelected justices who serve “during good behavior,” the Court’s rise in stature has not gone uncontested. Throughout the nation’s history, Congress, the president, and organized interest groups have all attempted to influence the Court’s jurisdiction, composition, and decision making. The Court’s prominence reflects Americans’ historically paradoxical attitudes toward the judiciary: they have often been suspicious of the power of unelected judges at the same time that they have relied on independent judicial institutions to resolve their deepest disputes.

Article

Politics of Reproductive Rights in 20th-Century America  

Rickie Solinger

The reproductive experiences of women and girls in the 20th-century United States followed historical patterns shaped by the politics of race and class. Laws and policies governing reproduction generally regarded white women as legitimate reproducers and potentially fit mothers and defined women of color as unfit for reproduction and motherhood; regulations provided for rewards and punishments accordingly. In addition, public policy and public rhetoric defined “population control” as the solution to a variety of social and political problems in the United States, including poverty, immigration, the “quality” of the population, environmental degradation, and “overpopulation.” Throughout the century, nonetheless, women, communities of color, and impoverished persons challenged official efforts, at times reducing or even eliminating barriers to reproductive freedom and community survival. Between 1900 and 1930, decades marked by increasing urbanization, industrialization, and immigration, eugenic fears of “race suicide” (concerns that white women were not having enough babies) fueled a reproductive control regime that pressured middle-class white women to reproduce robustly. At the same time, the state enacted anti-immigrant laws, undermined the integrity of Native families, and protected various forms of racial segregation and white supremacy, all of which attacked the reproductive dignity of millions of women. Also in these decades, many African American women escaped the brutal and sexually predatory Jim Crow culture of the South, and middle-class white women gained greater sexual freedom and access to reproductive health care, including contraceptive services. During the Great Depression, the government devised the Aid to Dependent Children program to provide destitute “worthy” white mothers with government aid while often denying such supports to women of color forced to subordinate their motherhood to agricultural and domestic labor. Following World War II, as the Civil Rights movement gathered form, focus, and adherents, and as African American and other women of color claimed their rights to motherhood and social provision, white policymakers railed against “welfare queens” and defined motherhood as a class privilege, suitable only for those who could afford to give their children “advantages.” The state, invoking the “population bomb,” fought to reduce the birth rates of poor women and women of color through sterilization and mandatory contraception, among other strategies. Between 1960 and 1980, white feminists employed the consumerist language of “choice” as part of the campaign for legalized abortion, even as Native, black, Latina, immigrant, and poor women struggled to secure the right to give birth to and raise their children with dignity and safety. The last decades of the 20th century saw severe cuts in social programs designed to aid low-income mothers and their children, cuts to funding for public education and housing, court decisions that dramatically reduced poor women’s access to reproductive health care including abortion, and the emergence of a powerful, often violent, anti-abortion movement. In response, in 1994 a group of women of color activists articulated the theory of reproductive justice, splicing together “social justice” and “reproductive rights.” The resulting Reproductive Justice movement, which would become increasingly influential in the 21st century, defined reproductive health, rights, and justice as human rights due to all persons and articulated what each individual requires to achieve these rights: the right not to have children, the right to have children, and the right to the social, economic, and environmental conditions necessary to raise children in healthy, peaceful, and sustainable households and communities.

Article

Roe v. Wade  

Mary Ziegler

Decided by the Supreme Court in 1973, Roe v. Wade legalized abortion across the United States. The 7-2 decision came at the end of a decades-long struggle to reform—and later repeal—abortion laws. Although all of the justices understood that Roe addressed a profoundly important question, none of them imagined that it would later become a flashpoint of American politics or shape those politics for decades to come. Holding that the right to privacy covered a woman’s choice to terminate her pregnancy, Roe and its companion case, Doe v. Bolton, struck down many of the abortion regulations on the books. The lead-up to and aftermath of Roe tell a story not only of a single Supreme Court decision but also of the historical shifts that the decision shaped and reflected: the emergence of a movement for women’s liberation, the rise of grassroots conservatism, political party realignment, controversy about the welfare state, changes to the family structure, and the politicization of science. It is a messy and complicated story that evolved parallel to different ideas about the decision itself. In later decades, Roe arguably became the best-known opinion issued by the Supreme Court, a symbol of an ever-changing set of beliefs about family, health care, and the role of the judiciary in American democracy.

Article

Struggles over Individual Rights and State Power in the Progressive Era  

Michael Willrich

From the 1890s to World War I, progressive reformers in the United States called upon their local, state, and federal governments to revitalize American democracy and address the most harmful social consequences of industrialization. The emergence of an increasingly powerful administrative state, which intervened on behalf of the public welfare in the economy and society, generated significant levels of conflict. Some of the opposition came from conservative business interests, who denounced state labor laws and other market regulations as meddlesome interferences with liberty of contract. But the historical record of the Progressive Era also reveals a broad undercurrent of resistance from ordinary Americans, who fought for personal liberty against the growth of police power in such areas as public health administration and the regulation of radical speech. Their struggles in the streets, statehouses, and courtrooms of the United States in the early 20th century shaped the legal culture of the period and revealed the contested meaning of individual liberty in a new social age.

Article

The Scopes Trial  

Adam R. Shaprio

The 1925 Scopes trial was a widely followed court case in Dayton, Tennessee, that attracted the attention of the nation. A prosecution against a schoolteacher charged with violating Tennessee’s new law prohibiting the teaching of human evolution, the trial became a great public spectacle that saw debates over the meaning and truth of the Bible, and the relationship between science and religion. The trial is most famous for the involvement of the lawyers William Jennings Bryan (for the prosecution) and Clarence Darrow (for the defense). Despite being a legally insignificant case, the trial has remained important in American history because it is seen as symbolizing some of the country’s great social issues in the early 20th century: fundamentalist responses to modernity, the autonomy and clout of the “New South,” and the eternal clash between religion and science.

Article

Human Rights and US Foreign Relations  

Sarah B. Snyder

In its formulation of foreign policy, the United States takes account of many priorities and factors, including national security concerns, economic interests, and alliance relationships. An additional factor with significance that has risen and fallen over time is human rights, or more specifically violations of human rights. The extent to which the United States should consider such abuses or seek to moderate them has been and continues to be the subject of considerable debate.

Article

Federalism  

Alison L. LaCroix

Federalism refers to the constitutional and political structure of the United States of America, according to which political power is divided among multiple levels of government: the national level of government (also referred to as the “federal” or “general” government) and that of the states. It is a multilayered system of government that reserves some powers to component entities while also establishing an overarching level of government with a specified domain of authority. The structures of federalism are set forth in the Constitution of the United States, although some related ideas and practices predated the founding period and others have developed since. The balance between federal and state power has shifted throughout U.S. history, with assertions of broad national power meeting challenges from supporters of states’ rights and state sovereignty. Federalism is a fundamental value of the American political system, and it has been a controversial political and legal question since the founding period.

Article

Women, Race, and the Law in Early America  

Terri L. Snyder

Everywhere across European and Indigenous settlements in 17th- and 18th-century North America and the Caribbean, the law or legal practices shaped women’s status and conditioned their dependency, regardless of race, age, marital status, or place of birth. Historians have focused much of their attention on the legal status, powers, and experiences of women of European origin across the colonies and given great consideration to the law of domestic relations, the legal disabilities of coverture, and women’s experiences as plaintiffs and defendants, both civil and criminal, in colonial courts. Early American legalities, however, differed markedly for women of color—whether free, indentured, or enslaved, and whether Native or African in origin or descent—whose relationships to the legal regimes of early America were manifold and complex. In their status under the law, experiences at the bar, and, as a result, positions in household polities, women of color reckoned with a set of legalities that differed from those of their European counterparts. The diversity of women’s experiences of the law was shaped not only by race but also by region: Indigenous people had what one historian has labeled jurispractices, while Europeans brought and created a jurisprudence of race and status that shaped treatments of women of color across imperial spaces. A widely comparative analysis of women and the law reflects ways in which race shaped women’s status under and experiences of the law as well as the legalities of their marriages in pre-Revolutionary America.

Article

The Society of American Indians  

K. Tsianina Lomawaima

In 1911, a group of American Indian intellectuals organized what would become known as the Society of American Indians, or SAI. SAI members convened in annual meetings between 1911 and 1923, and for much of that period the Society’s executive offices were a hub for political advocacy, lobbying Congress and the Office of Indian Affairs (OIA), publishing a journal, offering legal assistance to Native individuals and tribes, and maintaining an impressively voluminous correspondence across the country with American Indians, “Friends of the Indian” reformers, political allies, and staunch critics. Notable Native activists, clergy, entertainers, professionals, speakers, and writers—as well as Native representatives from on- and off-reservation communities—were active in the Society. They worked tirelessly to meet daunting, unrealistic expectations, principally to deliver a unified voice of Indian “public opinion” and to pursue controversial political goals without appearing too radical, especially obtaining U.S. citizenship for Indian individuals and allowing Indian nations to access the U.S. Court of Claims. They maintained their myriad activities with scant financial resources solely through the unpaid labor of dedicated Native volunteers. By 1923, the challenges exhausted the Society’s substantial human and miniscule financial capital. The Native “soul of unity” demanded by non-white spectators and hoped for by SAI leaders could no longer hold the center, and the SAI dissolved. Their work was not in vain, but citizenship and the ability to file claims materialized in circumscribed forms. In 1924 Congress passed the Indian Citizenship Act, granting birthright citizenship to American Indians, but citizenship for Indians was deemed compatible with continued wardship status. In 1946 Congress established an Indian Claims Commission, not a court, and successful claims could only result in monetary compensation, not regained lands.

Article

Federal Indian Law  

N. Bruce Duthu

United States law recognizes American Indian tribes as distinct political bodies with powers of self-government. Their status as sovereign entities predates the formation of the United States and they are enumerated in the U.S. Constitution as among the subjects (along with foreign nations and the several states) with whom Congress may engage in formal relations. And yet, despite this long-standing recognition, federal Indian law remains curiously ambivalent, even conflicted, about the legal and political status of Indian tribes within the U.S. constitutional structure. On the one hand, tribes are recognized as sovereign bodies with powers of self-government within their lands. On the other, long-standing precedents of the Supreme Court maintain that Congress possesses plenary power over Indian tribes, with authority to modify or even eliminate their powers of self-government. These two propositions are in tension with one another and are at the root of the challenges faced by political leaders and academics alike in trying to understand and accommodate the tribal rights to self-government. The body of laws that make up the field of federal Indian law include select provisions of the U.S. Constitution (notably the so-called Indian Commerce Clause), treaties between the United States and various Indian tribes, congressional statutes, executive orders, regulations, and a complex and rich body of court decisions dating back to the nation’s formative years. The noted legal scholar Felix Cohen brought much-needed coherence and order to this legal landscape in the 1940s when he led a team of scholars within the Office of the Solicitor in the Department of the Interior to produce a handbook on federal Indian law. The revised edition of Cohen’s Handbook of Federal Indian Law is still regarded as the seminal treatise in the field. Critically, however, this rich body of law only hints at the real story in federal Indian law. The laws themselves serve as historical and moral markers in the ongoing clash between indigenous and nonindigenous societies and cultures still seeking to establish systems of peaceful coexistence in shared territories. It is a story about the limits of legal pluralism and the willingness of a dominant society and nation to acknowledge and honor its promises to the first inhabitants and first sovereigns.