Legal History Commons^™

The Poverty Law Education Of Charles Reich, Felicia Kornbluh, Karen Tani

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This essay, written for a symposium on the life and legacy of Charles Reich, explores how Reich came to be interested in the field of poverty law and, specifically, the constitutional rights of welfare recipients. The essay emphasizes the influence of two older women in Reich’s life: Justine Wise Polier, the famous New York City family court judge and the mother of one of Reich’s childhood friends, and Elizabeth Wickenden, a contemporary of Polier’s who was a prominent voice in social welfare policymaking and a confidante of high-level federal social welfare administrators. Together, Polier and Wickenden helped educate Reich about …

Foreword: Abolition Constitutionalism, Dorothy E. Roberts

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In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation” sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is an …

Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank

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Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as …

The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin

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The Loving Story (Augusta Films 2011), directed by Nancy Buirski, tells the backstory of the groundbreaking U.S. Supreme Court case, Loving v. Virginia, that overturned state laws barring interracial marriage. The article looks to the documentary to explain why the Lovings should be considered icons of racial and ethnic civil rights, however much they might be associated with marriage equality today. The film shows the Lovings to be ordinary people who took their nearly decade long struggle against white supremacy to the nation’s highest court out of a genuine commitment to each other and a determination to live in …

Intersectionality And The Constitution Of Family Status, Serena Mayeri

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Marital supremacy—the legal privileging of marriage—is, and always has been, deeply intertwined with inequalities of race, class, gender, and region. Many if not most of the plaintiffs who challenged legal discrimination based on family status in the 1960s and 1970s were impoverished women, men, and children of color who made constitutional equality claims. Yet the constitutional law of the family is largely silent about the status-based impact of laws that prefer marriage and disadvantage non-marital families. While some lower courts engaged with race-, sex-, and wealth-based discrimination arguments in family status cases, the Supreme Court largely avoided recognizing, much less …

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

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Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …

Foundling Fathers: (Non-)Marriage And Parental Rights In The Age Of Equality, Serena Mayeri

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The twentieth-century equality revolution established the principle of sex neutrality in the law of marriage and divorce and eased the most severe legal disabilities traditionally imposed upon nonmarital children. Formal equality under the law eluded nonmarital parents, however. Although unwed fathers won unprecedented legal rights and recognition in a series of Supreme Court cases decided in the 1970s and 1980s, they failed to achieve constitutional parity with mothers or with married and divorced fathers. This Article excavates nonmarital fathers’ quest for equal rights, until now a mere footnote in the history of constitutional equality law.

Unmarried fathers lacked a social …

What Gideon Did, Sara Mayeux

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Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from …

Marriage (In)Equality And The Historical Legacies Of Feminism, Serena Mayeri

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In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history …

Marital Supremacy And The Constitution Of The Nonmarital Family, Serena Mayeri

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Despite a transformative half century of social change, marital status still matters. The marriage equality movement has drawn attention to the many benefits conferred in law by marriage at a time when the “marriage gap” between affluent and poor Americans widens and rates of nonmarital childbearing soar. This Essay explores the contested history of marital supremacy—the legal privileging of marriage—through the lens of the “illegitimacy” cases of the 1960s and 1970s. Often remembered as a triumph for nonmarital families, these decisions defined the constitutional harm of illegitimacy classifications as the unjust punishment of innocent children for the “sins” of their …

Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee

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Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …