A Coherent Measure

Abstract

According to many contemporary scholars, an originalist reading of the Fourteenth Amendment is difficult, if not impossible, because the Amendment did not have a coherent original meaning. Its provisions, it is argued, were ambiguous and vague--and deliberately so. But as will be set forth in this article, a review of the commentary from the drafting and ratification of the Amendment provides substantial evidence that proponents of the Amendment held a coherent understanding of Section 1. Further this evidence indicates that the major interpretive disagreements arose not among supporters but between supporters and opponents, and even these were generally limited to disputes on only two (albeit major) interpretive issues: (1) whether the “privileges and immunities of citizens of the United States” included intermarriage and political rights, (2) whether these “privileges and immunities” would be subject to congressional redefinition.     

On the Fourteenth Amendment: A Textual Analysis

Abstract

The most significant and lasting results of the Civil War were the 13^th Amendment, abolishing slavery in the US, and the 14^th Amendment, protecting certain privileges, immunities, and rights of citizens and persons in the US. The meaning of the 123^th amendment has been, for the most part clear and uncontroversial. The same cannot be said for the 14^th Amendment. The language of the 14^th is much more complex than that of the 13^th and the interpretation of the meaning of the Amendment has been very controversial since the very first Supreme Court cast attempting to construe it. My article attempts to show that despite that history of controversy and uncertainty of meaning the 14^th amendment is a model of clear constitutional draftsmanship and translucence of meaning.     

(Why) Did Reconstruction Fail? Legislating and Constitutionalizing Civil Rights

Abstract

The Thirty-ninth Congress, which was elected in November 1864 and began its first session in December 1865, undertook three tasks: to restore the Union after the Civil War, to amend the Constitution to ensure citizenship to the freedmen, and to legislate federal guarantees for their civil rights. Considering the political constraints of their situation—a hostile President and intransigence in many of the states of the former Confederacy—this essay aims to catalogue and assess the achievements of that Congress. While the Fourteenth Amendment in the long run served its intended purpose and the Civil Rights and Reconstruction Acts secured for a while the integration of the freedmen into the polity, Reconstruction failed to win widespread consent and proved impossible, at least politically, to continuously enforce.     

Method and Confusion in the Study of the Household: A Review

Abstract

When analyzing Woodrow Wilson's narrow victory in the presidential election of 1916, students of the Electoral College have focused on the closeness of the popular vote in California. None of them have noticed that Wilson's victory in the Electoral College depended on non-enforcement of the Penalty Clause of the Fourteenth Amendment. Using Morgan Kousser's analysis of voter disenfranchisement across the South between 1880 and 1910, this article demonstrates that Charles Evans Hughes would have won the electoral vote if the Penalty Clause had been enforced when the House was reapportioned following the 1910 census.     

Textual Corruption in the Civil Rights Cases

The Civil Rights Cases ¹ do not quite rival Plessy v. Ferguson ² for notoriety as the decision that most clearly confirmed the failure of Reconstruction and the rise of Jim Crow. Yet the Civil Rights Cases did far more than Plessy to limit federal power to address the continuing consequences of slavery. They declared unconstitutional the Civil Rights Act of 1875 insofar as it prohibited discrimination in public accommodations operated by private parties. Congress passed that act under its powers to enforce the Thirteenth and Fourteenth Amendments, but the Court held the act unconstitutional on the ground that private discrimination was neither a badge or incident of slavery under the Thirteenth Amendment nor a manifestation of state action under the Fourteenth. Although the Court's holding under the Thirteenth Amendment was effectively overruled by the Warren Court, ³ its holding under the Fourteenth Amendment continues to be influential, supporting a decision of the Rehnquist Court striking down the Violence Against Women Act. ⁴     

One Hundred and Twenty-Five Years after Slaughterhouse: Where's the Beef?

You never know. Historical events intended for one purpose sometimes result in the unintended, and American history is far from immune to this tendency. Thus the Civil War—first considered by Lincoln as nothing more than an attempt to prevent Southern secession—ultimately went far beyond an effort to preserve the Union, far beyond ending African-American slavery, far beyond even ensuring continued western expansion. By 1866, the war had wrought changes in the relationship between the federal government and the states, the federal government and its people, as well as the states and their citizenry. Although they may well have been unintended and their extent unclear, these transformations doomed continuance of the Union as it had been—producing instead a new connection between the American people and their legal order that is still evolving.¹ One manifestation of such change was the Fourteenth Amendment adopted by Congress in 1866. Ratified by the states as part of the Constitution in 1868, five years later the Supreme Court first considered its meaning and scope; and thereby hangs a story rich in irony.     

Joseph P. Bradley's Journey: The Meaning of Privileges and Immunities

Justice Joseph P. Bradley of New Jersey will forever be remembered as the judge who in 1883 cruelly scorned black rights in the Civil Rights Cases . ¹ Yet Bradley's position that year marked the end of a journey that had started in a quite different place. Thirteen years before, when he first joined the Court, Bradley had read Fourteenth Amendment protections of citizens' rights expansively, believing that "it is possible that those who framed the [Fourteenth Amendment] were not themselves aware of the far reaching character of its terms." In 1870 and 1871, Bradley wrote that the Fourteenth Amendment's Privileges and Immunities Clause reached "social evils … never before prohibited" and represented a commitment to " fundamental " or "sacred" rights of citizenship that stood outside the political process and "cannot be abridged by any state." ² By 1883, however, Bradley had turned away from such views. In the Civil Rights Cases , he wrote that nothing in the Thirteenth or Fourteenth Amendments countenanced a law against segregation. Blacks, he said, must take "the rank of mere citizen" and cease "to be the special favorite of the laws." ³     

Rattling on Exactly as They Talk: Romantic Conversations

ABSTRACT

The essay begins by identifying the conversation as a hitherto neglected Romantic genre, and by distinguishing the conversation from the dialogue. It goes on to characterise the conversation as a generic hybrid, ambiguously placed between writing and speech, between the studied and the impromptu, between the ephemeral and the permanent, and between fact and fiction. It points out how closely the conversation is connected with the rise in the second decade of the nineteenth century of the literary magazine, and with the publication in the same period of Byron’s Don Juan, and discusses why this should have been so. It argues that the conversation is a paradoxical literary genre in that it is best defined by its refusal of all conventional generic constraints.     

A New Standard of Review: Craig v. Boren and Brennan's “Heightened Scrutiny” Test in Historical Perspective

“To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” ¹ With this one statement, Justice William Brennan, Jr., writing for the majority in the 1976 Supreme Court case Craig v. Boren, ² both reversed the decision of the district court below and—more importantly—redefined the legal standard for equal protection in gender-discrimination cases. Brennan's statement encapsulated decades' worth of development and decisions under the Equal Protection Clause of the Fourteenth Amendment, which bars states from denying “to any person within [their] jurisdiction the equal protection of the laws,” ³ by creating what is now referred to as the “heightened scrutiny” ⁴ standard for judging equal protection legislation. Yet Brennan's creation of a new standard is quite striking, even when looked at in hindsight. How was Brennan able to create this standard of review, and where did it come from? Was this new step taken by the Justices under equal protection adjudication a mistake, or a necessary reality of the period? Through a close analysis of both the history of the Equal Protection Clause in its relation to gender legislation and the history of feminism during the 1960s and 1970s, the inevitability of Brennan's decision becomes clear. In fact, the creation of the heightened scrutiny standard was an inevitable outgrowth of two separate, yet fundamentally related progressions: the steps taken in the Court in its review of gender-discrimination cases in the years prior to Craig v. Boren; and the changes in society's relation to the feminist movement in the pre-1973 and post-1973 periods.     

Understanding interdisciplinarity in its argumentative context: thought and rhetoric in the perception of academic practices

ABSTRACT

The meaning and value of interdisciplinarity can be described in several, at times even contradictory, ways. Yet, little is known about how these play a role in individuals’ argumentation and everyday thinking. Drawing on Michael Billig’s rhetorical psychology, this paper explores how individuals draw on meanings, values, and connotations of interdisciplinarity to construct arguments and counter-arguments about this practice. This approach sheds light on the contradictions that surround interdisciplinarity, and thus on the rhetorical context in which its meaning is constituted. The value of rhetorical psychology for the study of interdisciplinarity is demonstrated through the analysis of the discourse of 27 interviews with researchers and administrators from a large British university. The analysis identifies 12 interpretative repertoires interviewees use to argue and to think about interdisciplinarity. Highlighting these repertoires and the contradictions between them is relevant for stimulating individuals’ reflexivity, critical thought, and decision-making regarding disciplinarity and interdisciplinarity.     

Authentic Kyrgyzstan: top down politics meet bottom up heritage

Abstract

Over the past twelve years I have collaborated with Kyrgyz citizens to promote a national conversation about heritage, based on grass roots interest and sentiment. Countering polarising political rhetoric about Kyrgyz nomadism as the only authentic national heritage identity, many citizens enthusiastically present the artefacts of ancient cities alongside the balbals (stele) of ancient nomads in their community museums, eagerly participate in discussions about a complex Kyrgyz past, and have collaborated with Uzbek speakers to create a national heritage society. In this paper I will describe several community museums and other grass roots education programmes that I have been involved with in Kyrgyzstan and consider their potential for countering ethnic conflict.     

Why does the god have a cup in his hand?

Abstract

In my analysis of the Ahiram Sarcophagus I focus on the figurative expression in connection with the sitting deity at one side of the sarcophagus. The drinking vessel in the hand of the deity is an expression belonging to the sphere of the cultic. It is very likely that the deity's holding the drinking vessel should be interpreted as a religious epithet. Without necessarily being tautological the expression could mean the deity is divine. Apparently, however, this phrase gets a more profound meaning when the drinking vessel is seen in the cultic context. The more so as the figure with the drinking vessel carries the meaning of a ritual act. One question could be why is a drinking vessel divine? It appears that information about the liquid sacrifice in the Hebrew Bible and its surrounding cultural world, especially the Anatolian, can contribute to answering this question. Recalling a hidden motive, the comparative ritualistic approach makes possible a better‐informed interpretation of the sarcophagus.     

Animating the urban: an ethological and geographical conversation

Abstract

Urban animals and their political ecologies constitute an arena of geographical scholarship that has intensified in recent years. Yet, little headway has been made in terms of understanding how sentient creatures inhabit and negotiate dynamic, metabolic environments. Focusing on urban macaques in Indian cities, the paper develops a conversation between geography and ethology. Firstly, the conversation provides insights into what urbanisation might entail for animals. Secondly, it assays ways in which non-human knowledges enable rethinking what expertise counts in urban governance. Thirdly, the conversation foregrounds other spatial topologies of the urban that become evident when animals’ lifeworlds are taken into account. The paper advances efforts to animate urban political ecology in registers yet inattentive to non-human lifeworlds. It concludes by reflecting upon the purchase of such etho-geographical conversations generate for political ecologies of urbanisation.     

Towards a history of emotion, 1562–1660

Abstract

This article examines uses of the word emotion during the seventeenth century, arguing that the term's meaning at this time was in flux. OED gives three principle definitions of emotion, the first as meaning ‘political turmoil or agitation’, the second as meaning literally ‘movement or motion’, and the third as meaning ‘strong feelings or passing’. I argue that a great many uses of emotion during the seventeenth century apply the word in the second sense to the physiological movements of humours. This being so, I suggest that in emotion's seventeenth-century uses it is possible to read a transition in the word's meaning. Through its frequent use with references to humours in motion, the word begins to take on the characteristics which would allow it to develop into meaning ‘feelings or passions’.     

The Extraterrestrial Paradigm Improving the Prospects for Life in the Universe

Abstract

Spaceflight and the ever-increasing knowledge of the astronomical universe raise again the age-old questions if our existence as a species has any meaning, if the universe itself is a blind deterministic working-out of physical laws, or is the meaning of existence simply hidden from us? Here the emergence of an extraterrestrial paradigm is postulated, a new pattern, far transcending the limits of our planet, leading through the philosophy and psychology of expansion, to exploration and then colonization of space. That intelligence must expand its influence on the universe and thus assure its survival, is the author's final conclusion. The views expressed here are personal.     

The Battle over Brown's Legitimacy

Constitutional scholars have given few Supreme Court rulings the attention that they have lavished upon the celebrated decision in Brown v. Board of Education . Yet the literature of public law is surprisingly unedifying with regard to the process by which the desegregation decision achieved iconic status in American legal culture. Scholarly inattentiveness to the history of Brown's reputation is startling, given that southern politicians were not the only persons in 1954 to characterize the decision as a manifest instance of judicial legislation. Even persons sympathetic to desegregation conceded that the Justices had circumvented traditional legal constraints in rendering Brown . In the years immediately following the ruling, some scholars appealed to the notion of a "living Constitution" to defend Brown against charges that it conflicted with the original understanding of the Fourteenth Amendment and with the "separate but equal" doctrine that the Court had established in Plessy v. Ferguson . But critics, some of whom even accepted the concept of the "living Constitution," also challenged the Court's reading of social fact—that is, its claims regarding the inherent inequality of segregated schools—which supposedly justified judicial recognition of a right that conflicted with precedent and with the intentions of the Framers of the Equal Protection Clause.     

'To attract the attention of fish as little as possible': An Object-Led Discussion of Three Garments,for Country Wear for Women,Made of Scottish Woollen Cloth,Dating from 1883–1908

Abstract

This article aims to establish the precise social and cultural function of three day costumes, worn by women in Scotland in the 1880–1910 period, all made from heavy-duty woollen cloth, using an object-focused, material culture approach. Discussion is built around Tim Breen's view that things acquire meaning only once woven into cultural debate about the structure of society.     

What is a Salafi Reformist?

Abstract

Tariq Ramadan is one of the most prominent and controversial Western Muslim political thinkers today. He has been called everything from a moderate liberal Muslim thinker to a radical Islamist in disguise. He calls himself a Salafi reformist. According to him, Salafi reformists read the sacred texts of Islam dynamically, using reason, and reject literalist readings. Yet Ramadan also calls Sayyid Qutb a Salafi reformist. The problem is that, by most accounts, Qutb is the quintessential radical Islamist. This raises the question of what Ramadan thinks actually makes someone a Salafi reformist, and what this can tell us about his political teaching. To answer this question, I put Ramadan and Qutb into conversation. I argue that, while Ramadan meets his own criteria for being a Salafi reformist, Qutb does not. I suggest some reasons why Ramadan may not share this view; his political theology tells a different story.     

‘A STUBBORN,INTRACTABLE BODY’: RESISTANCE TO THE WORKHOUSE IN WALES, 1834–1877

Abstract

Despite a recognition that Welsh poor law authorities were less than welcoming to many of the strictures of the Poor Law Amendment Act in 1834, historians have tended to downplay the importance of their resistance in the context of the wider anti-poor law ‘movement’ across England and Wales. Instead, a general consensus has arisen that Welsh boards of guardians tended to resist the New Poor Law on the grounds of financial expediency or provincial insularity, rather than because of any ideological or humanitarian hostility towards its provisions. This article presents compelling evidence that this consensus is quite wrong, and demonstrates in turn that, not only were Welsh guardians far more successful in their resistance to the new workhouse regime even the most recalcitrant English unions, but that that resistance was founded upon a long-standing and coherent antipathy to the punitive nature of the workhouse as an institution, rather than simply being founded on short-term financial or practical considerations.     

Meurtre à Byzance: Byzantine murders in modern literature

Abstract

Thus runs the suggestively recurrent theme in a recent novel by Julia Kristeva, the famous psychoanalyst, linguist and semiotician (Meurtre à Byzance. Paris: Fayard, 2004). Kristeva, who immigrated to France from Bulgaria in the 1960s, here seizes the opportunity to set forth problems concerning her own East European and Orthodox background. She does so in a form that to a remarkably high degree mirrors her own work as a scholar: Meurtre à Byzance, with its manifold references to medieval and modern literature, is imbued with intertextuality and polyphony, literary devices which she herself as a theorist has largely helped define. And the complex story is not, as one might expect from the title, a historical detective novel set in a Byzantine milieu, but a romantic yet critical story about contemporary society, our search for origin and meaning, our longing for — as Kristeva puts it — a Byzantium of our own.