1-20 of 41 Results  for:

  • Legal History x
Clear all

Article

The Bracero Program/“Guest Worker” Programs  

Ana Elizabeth Rosas

On August 4, 1942, the Mexican and US governments launched the binational guest worker program most commonly known as the Bracero Program. An estimated 5 million Mexican men between the ages of nineteen and forty-five separated from their families for three to nine-month cycles at a time, depending on the duration of their labor contract, in anticipation of earning the prevailing US wage this program had promised them. They labored in US agriculture, railroad construction, and forestry with hardly any employment protections or rights in place to support themselves or the families they had left behind in Mexico. The inhumane configuration and implementation of this program prevented most of these men and their families from meeting this goal. Instead, the labor exploitation and alienation that characterized this guest worker program and their program participation paved the way for fragile transnational family relationships. The Bracero Program grew over the course of its twenty-two-year existence, and despite its negative consequences, Mexican men and their families could not afford to settle for unemployment in Mexico nor pass up US employment opportunities of any sort. The Mexican and US governments’ persistently negligent management of the program coupled with their conveniently selective acknowledgment of the severity of the plight of Mexican women and men consistently required Mexican men and their families to shoulder the full extent of the program’s exploitative conditions and terms.

Article

Brown v. Board of Education  

Christopher W. Schmidt

On May 17, 1954, the Supreme Court unanimously struck down as unconstitutional state-mandated racial segregation in public schools, which at the time was policy in seventeen states. Brown v. Board of Education marked the culmination of a decades-long litigation campaign by the NAACP. White-controlled states across the South responded by launching a “massive resistance” campaign of defiance against Brown, which was followed by decades of struggles, inside and outside the courts, to desegregate the nation’s schools. Brown also signaled the new and often controversial direction the Supreme Court would take under leadership of Chief Justice Earl Warren—one that read the rights protections of the Constitution more broadly than its predecessors and was more aggressive in using these rights to protect vulnerable minorities. Brown is nearly universally celebrated today, yet the terms of its celebration remain contested. Some see the case as a call for ambitious litigation strategies and judicial boldness, whereas others use it to demonstrate the limited power of the courts to effect social change. Some find in Brown a commitment to a principle of a “colorblind” Constitution, others a commitment to expunging practices that oppress racial minorities (often requiring race-conscious policies). Brown thus remains what it was in 1954: a bold statement of the principle of racial equality whose meaning the nation is still struggling to work out.

Article

California Indians  

Benjamin L. Madley

Human beings have inhabited the region known as California for at least 13,000 years, or as some believe since time immemorial. By developing technologies, honing skills, and implementing stewardship practices, California Indian communities maximized the bounty of their homelands during the precolonial period. Overall, their population grew to perhaps 310,000 people. Speaking scores of different languages, they organized themselves into at least sixty major tribes. Communities were usually politically autonomous but connected to larger tribal groups by shared languages and cultures while dense networks of economic exchange also bound tribes together. Newcomers brought devastating change, but California Indians resisted and survived. During the Russo-Hispanic period (1769–1846), the Indigenous population fell to perhaps 150,000 people due to diseases, environmental transformation, and colonial policies. The organized mass violence and other policies of early United States rule (1846–1900) further reduced the population. By 1900, census takers counted only 15,377 California Indian people. Still, California Indians resisted. During the 1900–1953 period, the federal government continued its national Allotment Policy but initiated healthcare, land policy, education, and citizenship reforms for California Indians even as they continued to resist and their population grew. During the termination era (1953–1968), California Indians faced federal attempts to obliterate them as American Indians. Finally, California Indian people achieved many hard-won victories during the self-determination era (1968–present).

Article

The National Association for the Advancement of Colored People (NAACP)  

Lee Sartain

The NAACP, established in 1909, was formed as an integrated organization to confront racism in the United States rather than seeing the issue as simply a southern problem. It is the longest running civil rights organization and continues to operate today. The original name of the organization was The National Negro League, but this was changed to the NAACP on May 30, 1910. Organized to promote racial equality and integration, the NAACP pursued this goal via legal cases, political lobbying, and public campaigns. Early campaigns involved lobbying for national anti-lynching legislation, pursuing through the US Supreme Court desegregation in areas such as housing and higher education, and the pursuit of voting rights. The NAACP is renowned for the US Supreme Court case of Brown v. Board of Education (1954) that desegregated primary and secondary schools and is seen as a catalyst for the civil rights movement (1955–1968). It also advocated public education by promoting African American achievements in education and the arts to counteract racial stereotypes. The organization published a monthly journal, The Crisis, and promoted African American art forms and culture as another means to advance equality. NAACP branches were established all across the United States and became a network of information, campaigning, and finance that underpinned activism. Youth groups and university branches mobilized younger members of the community. Women were also invaluable to the NAACP in local, regional, and national decision-making processes and campaigning. The organization sought to integrate African Americans and other minorities into the American social, political, and economic model as codified by the US Constitution.

Article

Child Migrants in 20th-Century America  

Ivón Padilla-Rodríguez

Child migration has garnered widespread media coverage in the 21st century, becoming a central topic of national political discourse and immigration policymaking. Contemporary surges of child migrants are part of a much longer history of migration to the United States. In the first half of the 20th century, millions of European and Asian child migrants passed through immigration inspection stations in the New York harbor and San Francisco Bay. Even though some accompanied and unaccompanied European child migrants experienced detention at Ellis Island, most were processed and admitted into the United States fairly quickly in the early 20th century. Few of the European child migrants were deported from Ellis Island. Predominantly accompanied Chinese and Japanese child migrants, however, like Latin American and Caribbean migrants in recent years, were more frequently subjected to family separation, abuse, detention, and deportation at Angel Island. Once inside the United States, both European and Asian children struggled to overcome poverty, labor exploitation, educational inequity, the attitudes of hostile officials, and public health problems. After World War II, Korean refugee “orphans” came to the United States under the Refugee Relief Act of 1953 and the Immigration and Nationality Act. European, Cuban, and Indochinese refugee children were admitted into the United States through a series of ad hoc programs and temporary legislation until the 1980 Refugee Act created a permanent mechanism for the admission of refugee and unaccompanied children. Exclusionary immigration laws, the hardening of US international boundaries, and the United States preference for refugees who fled Communist regimes made unlawful entry the only option for thousands of accompanied and unaccompanied Mexican, Central American, and Haitian children in the second half of the 20th century. Black and brown migrant and asylum-seeking children were forced to endure educational deprivation, labor trafficking, mandatory detention, deportation, and deadly abuse by US authorities and employers at US borders and inside the country.

Article

Civil Rights and Schools: Tinker v. Des Moines  

Kathryn Schumaker

The 1969 Supreme Court ruling in Tinker v. Des Moines established that students in public elementary and secondary schools do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Before Tinker, students often faced punishment from school officials for their role in protests both on and off campus. A rise in civil rights protests and the role of young people in the social movements of the 1960s led to frequent conflicts between students and school administrators. Many black students were especially vocal in contesting racial discrimination at school in the two decades following the 1954Brown v. Board of Education decision. But before Tinker, students in public elementary and secondary schools were not considered to have any constitutional rights, including the right to free expression. Some of these students brought lawsuits in response to punishments they believed unfairly disciplined them for participating in legitimate protests. The political activism of young people and developments in First Amendment law eventually brought the Constitution into the public school classroom, leading to Tinker and other cases that established students’ rights.

Article

The Clinton Scandals  

Clodagh Harrington

The Clinton scandals have settled in the annals of American political history in the context of the era’s recurrent presidential misbehavior. Viewed through a historical lens, the activities, investigation, and impeachment trial of the forty-second president are almost inevitably measured against the weight of Watergate and Iran-Contra. As a result, the actions and consequences of this high-profile moment in the late-20th-century political history of the United States arguably took on a weightier meaning than it might otherwise have. If Watergate tested the U.S. constitutional system to its limits and Iran-Contra was arguably as grave, the Clinton affair was crisis-light by comparison. Originating with an investigation into a failed 1970s Arkansas land deal by Bill Clinton and his wife, the saga developed to include such meandering subplots as Filegate, Travelgate, Troopergate, the death of White House counsel Vince Foster, and, most infamously, the president’s affair with a White House intern. Unlike Richard Nixon and Ronald Reagan, even Bill Clinton’s most ardent critics could not find a national security threat among the myriad scandals linked to his name. By the time that Justice Department appointee Robert Fiske was replaced as prosecutor by the infinitely more zealous Kenneth Starr, the case had become synonymous with the culture wars that permeated 1990s American society. As the Whitewater and related tentacles of the investigation failed to result in any meaningfully negative impact on the president, it was his marital infidelities that came closest to unseating him. Pursued with vigor by the Independent Counsel, his supporters remained loyal as his detractors spotted political opportunity via his lapses in judgment. Certain key factors made the Clinton scandal particular to its era. First, in an unprecedented development, the personal indiscretion aspect of the story broke via the Internet. In addition, had the Independent Counsel legislation not been renewed, prosecutor Fiske would likely have wrapped up his investigation in a timely fashion with no intention of pursuing an impeachment path. And, the relentless cable news cycle and increasingly febrile partisan atmosphere of the decade ensured that the nation remained as focused as it was divided on the topic.

Article

Death and Dying in the Working Class  

Michael K. Rosenow

In the broader field of thanatology, scholars investigate rituals of dying, attitudes toward death, evolving trajectories of life expectancy, and more. Applying a lens of social class means studying similar themes but focusing on the men, women, and children who worked for wages in the United States. Working people were more likely to die from workplace accidents, occupational diseases, or episodes of work-related violence. In most periods of American history, it was more dangerous to be a wage worker than it was to be a soldier. Battlegrounds were not just the shop floor but also the terrain of labor relations. American labor history has been filled with violent encounters between workers asserting their views of economic justice and employers defending their private property rights. These clashes frequently turned deadly. Labor unions and working-class communities extended an ethos of mutualism and solidarity from the union halls and picket lines to memorial services and gravesites. They lauded martyrs to movements for human dignity and erected monuments to honor the fallen. Aspects of ethnicity, race, and gender added layers of meaning that intersected with and refracted through individuals’ economic positions. Workers’ encounters with death and the way they made sense of loss and sacrifice in some ways overlapped with Americans from other social classes in terms of religious custom, ritual practice, and material consumption. Their experiences were not entirely unique but diverged in significant ways.

Article

Early American Slave Law  

Sally Hadden

Slave law in early America may be found in the formal written laws created in metropolitan places such as Paris or Madrid as well as locally within English colonies such as Barbados or South Carolina. These written laws constitute only one portion of the known law governing slave behavior, for individual masters created their own rules to restrict enslaved persons. These master-made rules of conduct almost never appear in print and were conveyed most often through oral transmission. Such vernacular laws provide another element of the limitations all enslaved people experienced in the colonial period. Those without literacy, including Native Americans or illiterate settlers, nonetheless had rules to limit slave behavior, even if they remained unwritten. Customary law, Bible precepts, and Islamic law all provided bases for understanding the rules that bound unfree persons. Most colonial law mandated barbaric punishments for slave crime, though these were sometimes commuted to banishment. Spanish and French codes and local ordinances did not always agree on how slaves should be treated. The numerous laws found in English colonies, sometimes wrongly denominated as codes, spread widely as individuals migrated; the number and variety of such laws makes comprehensive transimperial comparisons challenging. Laws might occasionally ban keeping slaves or trading in them, but most such laws were ignored. Slave courts typically operated in arbitrary, capricious ways that assumed slave guilt and accepted weak evidence to prove it. Runaways might, if they joined strong maroon communities (bands of runaways living together), end up enforcing the laws against slave flight, much as slave catchers and slave patrols did. Laws to prevent manumission by a master frequently required the posting of bonds to prevent those freed from becoming a financial burden on their communities. Later manumission laws often mandated the physical departure of those freed, creating emotional turmoil for the newly emancipated.

Article

The Equal Rights Amendment  

Robyn Muncy

The Equal Rights Amendment (ERA), designed to enshrine in the Constitution of the United States a guarantee of equal rights to women and men, has had a long and volatile history. When first introduced in Congress in 1923, three years after ratification of the woman suffrage amendment to the US Constitution, the ERA faced fierce opposition from the majority of former suffragists. These progressive women activists opposed the ERA because it threatened hard-won protective labor legislation for wage-earning women. A half century later, however, the amendment enjoyed such broad support that it was passed by the requisite two-thirds of Congress and, in 1972, sent to the states for ratification. Unexpectedly, virulent opposition emerged during the ratification process, not among progressive women this time but among conservatives, whose savvy organizing prevented ratification by a 1982 deadline. Many scholars contend that despite the failure of ratification, equal rights thinking so triumphed in the courts and legislatures by the 1990s that a “de facto ERA” was in place. Some feminists, distrustful of reversible court decisions and repealable legislation, continued to agitate for the ERA; others voiced doubt that ERA would achieve substantive equality for women. Because support for an ERA noticeably revived in the 2010s, this history remains very much in progress.

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.

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

Free Civil Legal Assistance in the United States, 1863–1980  

Felice Batlan

Legal aid organizations were first created by a variety of private groups during the Civil War to provide legal advice in civil cases to the poor. The growing need for legal aid was deeply connected to industrialization, urbanization, and immigration. A variety of groups created legal aid organizations in response to labor unrest, the increasing number of women in the workforce, the founding of women’s clubs, and the slow and incomplete professionalization of the legal bar. In fact, before women could practice law, or were accepted into the legal profession, a variety of middle-class women’s groups using lay lawyers provided legal aid to poor women. Yet, this rich story of women’s work was later suppressed by leaders of the bar attempting to claim credit for legal aid, assert a monopoly over the practice of law, and professionalize legal assistance. Across time, the largest number of claims brought to legal aid providers involved workers trying to collect wages, domestic relations cases, and landlord tenant issues. Until the 1960s, legal aid organizations were largely financed through private donations and philanthropic organizations. After the 1960s, the federal government provided funding to support legal aid, creating significant controversy among lawyers, legal aid providers, and activists as to what types of cases legal aid organizations could take, what services could be provided, and who was eligible. Unlike in many other countries or in criminal cases, in the United States there is no constitutional right to have free counsel in civil cases. This leaves many poor and working-class people without legal advice or access to justice. Organizations providing free civil legal services to the poor are ubiquitous across the United States. They are so much part of the modern legal landscape that it is surprising that little historical scholarship exists on such organizations. Yet the history of organized legal aid, which began during the Civil War, is a rich story that brings into view a unique range of historical actors including women’s organizations, lawyers, social workers, community organizations, the state and federal government, and the millions of poor clients who over the last century and a half have sought legal assistance. This history of the development of legal aid is also very much a story about gender, race, professionalization, the development of the welfare state, and ultimately its slow dismantlement. In other words, the history of legal aid provides a window into the larger history of the United States while producing its own series of historical tensions, ironies, and contradictions. Although this narrative demonstrates change over time and various ruptures with the past, there are also important continuities in the history of free legal aid. Deceptively simple questions have plagued legal aid for almost a century and have also driven much of the historical scholarship on legal aid. These include: who should provide legal aid services, who should receive free legal aid, what types of cases should legal aid organizations handle, who should fund legal aid, and who benefits from legal aid.

Article

Freedom of the Press  

Sam Lebovic

According to the First Amendment of the US Constitution, Congress is barred from abridging the freedom of the press (“Congress shall make no law . . . abridging the freedom of speech, or of the press”). In practice, the history of press freedom is far more complicated than this simple constitutional right suggests. Over time, the meaning of the First Amendment has changed greatly. The Supreme Court largely ignored the First Amendment until the 20th century, leaving the scope of press freedom to state courts and legislatures. Since World War I, jurisprudence has greatly expanded the types of publication protected from government interference. The press now has broad rights to publish criticism of public officials, salacious material, private information, national security secrets, and much else. To understand the shifting history of press freedom, however, it is important to understand not only the expansion of formal constitutional rights but also how those rights have been shaped by such factors as economic transformations in the newspaper industry, the evolution of professional standards in the press, and the broader political and cultural relations between politicians and the press.

Article

Gender Rights and American Employment  

Katherine Turk

Throughout American history, gender, meaning notions of essential differences between women and men, has shaped how Americans have defined and engaged in productive activity. Work has been a key site where gendered inequalities have been produced, but work has also been a crucible for rights claims that have challenged those inequalities. Federal and state governments long played a central role in generating and upholding gendered policy. Workers and advocates have debated whether to advance laboring women’s cause by demanding equality with men or different treatment that accounted for women’s distinct responsibilities and disadvantages. Beginning in the colonial period, constructions of dependence and independence derived from the heterosexual nuclear family underscored a gendered division of labor that assigned distinct tasks to the sexes, albeit varied by race and class. In the 19th century, gendered expectations shaped all workers’ experiences of the Industrial Revolution, slavery and its abolition, and the ideology of free labor. Early 20th-century reform movements sought to beat back the excesses of industrial capitalism by defining the sexes against each other, demanding protective labor laws for white women while framing work done by women of color and men as properly unregulated. Policymakers reinforced this framework in the 1930s as they built a welfare state that was rooted in gendered and racialized constructions of citizenship. In the second half of the 20th century, labor rights claims that reasoned from the sexes’ distinctiveness increasingly gave way to assertions of sex equality, even as the meaning of that equality was contested. As the sex equality paradigm triumphed in the late 20th and early 21st centuries, seismic economic shifts and a conservative business climate narrowed the potential of sex equality laws to deliver substantive changes to workers.

Article

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

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

Indian Gaming  

Laurie Arnold

Indian gaming, also called Native American casino gaming or tribal gaming, is tribal government gaming. It is government gaming built on sovereignty and consequently is a corollary to state gambling such as lotteries rather than a corollary to corporate gaming. While the types of games offered in casinos might differ in format from ancestral indigenous games, gaming itself is a cultural tradition in many tribes, including those who operate casino gambling. Native American casino gaming is a $33.7 billion industry operated by nearly 250 distinct tribes in twenty-nine states in the United States. The Indian Gaming Regulatory Act (IGRA) of 1988 provides the framework for tribal gaming and the most important case law in Indian gaming remains Seminole Tribe of Florida v. Butterworth, in the US Fifth Circuit Court of Appeals, and the US Supreme Court decision over California v. Cabazon Band of Mission Indians.

Article

International Law and US Foreign Relations  

Brian Cuddy

International law is the set of rules, formally agreed by treaty or understood as customary, by which nation-states interact with each other in a form of international society. Across the history of U.S. foreign relations, international law has provided both an animating vision, or ideology, for various American projects of world order, and a practical tool for the advancement of U.S. power and interests. As the American role in the world changed since the late 18th century, so too did the role of international law in U.S. foreign policy. Initially, international law was a source of authority to which the weak American government could appeal on questions of independence, sovereignty, and neutrality. As U.S. power grew in the 19th and early 20th centuries, international law became variously a liberal project for the advancement of peace, a civilizational discourse for justifying violence and dispossession, and a bureaucratic and commercial tool for the expansion of empire. With the advent of formal inter-governmental organizations in the 20th century, the traditional American focus on neutrality faded, to be replaced by an emphasis on collective security. But as the process of decolonization diluted the strength of the United States and its allies in the parliamentary chambers of the world’s international organizations, Washington increasingly advanced its own interpretations of international law, and opted out of a number of international legal regimes. At the same time, Americans increasingly came to perceive of international law as a vehicle to advance the human rights of individuals over the sovereign rights of states.

Article

Juvenile Justice in the United States  

David S. Tanenhaus

Juvenile justice is a technical term that refers to the specific area of law and affiliated institutions, most notably the juvenile court, with jurisdiction over the cases of minors who are accused of being miscreants. Although the idea that the law should treat minors differently from adults predates the American Revolution, juvenile justice itself is a Progressive Era invention. Its institutional legitimacy rests on the power and responsibility of the state to act as a parent (parens patriae) on behalf of those who cannot care for themselves. Since the establishment of the world’s first juvenile court in Chicago in 1899, this American idea of creating separate justice systems for juveniles has spread across the nation and much of the world. For more than a century, American states have used their juvenile justice systems to respond to youth crime and delinquency. Since the 1960s, the US Supreme Court has periodically considered whether juvenile courts must provide the same constitutional due process safeguards as adult criminal courts and whether juveniles prosecuted in the criminal justice system can receive the same sentences as adults, such as the death penalty or life without the possibility of parole.