The Judicial Bookshelf

A persistent reality of constitutional government in the United States from practically the beginning of the Republic has been the close link between the Constitution itself and the Supreme Court. Oddly, this link derives more from the Constitution's impact on the American political system than from what the Constitution itself actually says or contains. True, Article III included cases “arising under this Constitution” in describing the proper reach of the federal judicial power, and Article VI specified that “[t]his Constitution and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme Law of the Land … ” ¹ But the document not only provided scant means for enforcing that supremacy, but also failed even to specify how this “supreme Law” should be interpreted. It soon became clear, however that the task of interpretation would fall upon the Supreme Court, as illustrated by Chisholm v. Georgia. ² In the face of assurances made by Alexander Hamilton, James Madison, John Marshall, and others during the ratification debates in 1787–1788 that a state could not, without its consent, be made a defendant in the federal courts by a citizen of another state, ³ the Justices in 1793 construed the language in Article III conferring the federal judicial power in suits “Between a State and Citizens of another State” to encompass a suit brought by a South Carolinian against the State of Georgia. The uproar that ensued prompted swift ratification of the Eleventh Amendment, which reversed the Court's first excursion into the realm of constitutional interpretation. Despite this rebuke, it was only a short time before Chief Justice Marshall insisted that the judicial power encompassed the authority “to say what the law is.” ⁴ Thus, from the assumed role of expounding of the Constitution evolved the companion duty of guarding it as well.     

The Judicial Bookshelf

Millions were reminded on January 20, 2009, that the inauguration of an American President is as remarkable as it is routine. In this distinctly republican rite, the chief executive publicly subordinates himself to the fundamental law of the land. As the Constitution dictates, “[b]efore he enters on the Execution of his Office, he shall take the following Oath or Affirmation: ‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’” ¹ This display of constitutional fealty was remarkable because the variety of political systems, experiences, and cultures across today's globe graphically illustrates that the seamless and peaceful transfer of authority from one political party or individual to another, as was witnessed at President Barack Obama's inauguration and at President George W. Bush's inauguration in 2001, is not always a foregone occurrence everywhere. January's event was routine in that, from the outset of government under the Constitution and with the notable and tragic exception of 1860, the defeated party or individual has accepted, if not welcomed, the verdict rendered by the electoral process. That was the outcome even in 1800, when the notion of a violence‐free shift of control in a country founded on the principle of government by the “consent of the governed” ² was first put to the test at the presidential level. The assumption of authority by Thomas Jefferson and the Democratic‐Republicans from John Adams and the Federalists marked the world's first peaceful transfer of power from the vanquished to the victors as the result of an election. ³ Given the stark national partisan differences that had crystallized in the short time since ratification of the Constitution and the fact that finalization of the election required extraordinary intervention by the House of Representatives to break an Electoral College tie, this outcome was a greater achievement than is sometimes acknowledged. “Partisanship prevailed to the bitter end and showed no signs of abating,” according to one historian who has recently revisited this critical and precedent‐setting election. “Over the campaign's course, George Washington's vision of elite consensus leadership had died, and a popular two‐party republic … was born.” ⁴     

The Judicial Bookshelf

Two decades ago, in the summer of 1987, celebrations of the bicentennial of the United States Constitution were in high gear under the watchful eye of then recently retired Chief Justice Warren E. Burger, who chaired the Commission on the Bicentennial of the United States Constitution between 1985 and 1991. ¹ Numerous lectures, seminars, and conferences across the land made clear not only the role and value of what Chief Justice William Howard Taft once called “the ark of our covenant” ² in the life of the nation but also the central place the judiciary had long occupied in the political system, as state and national courts confronted vital questions of public policy perplexing and dividing the people. As that astute French aristocrat Alexis de Tocqueville first noted in 1835, the “American judge is dragged in spite of himself onto the political field . … There is hardly a political question in the United States which does not sooner or later turn into a judicial one.” ³ With the “right to declare laws unconstitutional,” he explained, the judge “cannot compel the people to make laws, but at least he can constrain them to be faithful to their own laws and to remain in harmony with themselves.” ⁴     

Emer Martin and multimodal family dysfunction: More Bread or I’ll Appear (1999)

Emer Martin’s More Bread or I’ll Appear (1999) revisits the discourse of the family in Ireland between the 1970s and the 1990s. This article contends that Martin intersects her work with family “issues” of the day so as to accommodate the representation of what can be termed as multimodal family dysfunction. She provides insights to the role of women, family and global female diaspora. This paper draws upon work by Diarmaid Ferriter, Alpha Connelly and the tenets of transnational feminism to account for the historical, ideological and sociocultural contexts of the time. For Martin, dysfunction is multimodal in the way in which the Irish family portrayed faces real “hidden issues” from different discourses. Her novel also focuses on the “wounds” that have been the effect of abuse, secrets, appearances, violence and lack of communication within the family. Another mode of Martin’s representation of dysfunction considers the transnational experiences of her female characters on the margins of an Ireland becoming global. Her novel invokes transnational perspectives so as to commit to dislodging nation-centric and family-centric visions of Ireland.     

Revisiting nineteenth-century U.S. interventionism in Central America: capitalism,intrigue, and the obliteration of Greytown

In October 2016 the Congressional Research Service published its latest version of “Instances of Use of United States Armed Forces Abroad.” One of the “instances” occurred in 1854, and the entry reads in its entirety: “Naval forces bombarded and burned San Juan del Norte (Greytown) to avenge an insult to the American Minister to Nicaragua.”¹1. Torreon, Instances of Use of United States Armed Forces Abroad, 1798–2016, 4.View all notes The following article posits that Greytown was not destroyed to avenge an insult to an American diplomat. Rather, two groups of prominent American businessmen used this and related events and their antecedents as pretexts to enlist the federal government in destroying Greytown. One group, representing a U.S.-owned isthmian steamboat company, sought to seize the port of Greytown as a private fiefdom; the other wanted it as the prospective capital of a new colony based on a huge, dubious land grant they owned.     

马丁·麦乐西与美国城市环境史研究

马丁·麦乐西教授是美国著名的环境史学家,曾经担任“美国环境史学会”(1993-1995年)、“公共史全国委员会”(1992-1993年)和“公共工程历史学会”(1988-1989年)的主席。本文分为两个部分。第一部分从理论基础、概念界定、功能发挥以及具体的历史研究成果等方面介绍了他的城市环境史成就。第二部分是作者对马丁教授的访谈,他就城市环境史与农业生态史的关系、自然环境与人工环境的关系、技术在城市环境史中的作用、环境正义运动的性质等问题进一步阐述了自己的观点。另外,本文在注释中附有朱尔·A·塔尔教授对相关问题的简要回答。     

The Power of International Positioning: The National Woman's Party,International Law and Diplomacy, 1928–34

Between 1928 and 1934, Doris Stevens and Alice Paul of the National Woman's Party (NWP) embarked on a strategy to use international law to gain domestic rights for women in the United States. They sought to pass the equivalent of the 1923 Equal Rights Amendment by treaty at international conferences in Europe and the Americas. The pre‐eminence of the United States in the Americas granted them diplomatic access through the Inter‐American Commission of Women (IACW) that, paradoxically, strengthened the NWP's position when the US administration opposed its proposed reforms. When the US signed the Nationality Rights Treaty in Montevideo, Uruguay in 1934, the NWP won a significant nationality reform, namely the right of US women to transmit citizenship to children born abroad. In exchange for its support, the Roosevelt administration required them to shelve their proposed Equal Rights Treaty. The article also demonstrates a nascent presence of American women in unofficial diplomatic circles. In this, as in other stories, women's history has taught us to search for the influence of women that institutional histories miss.     

Covering the Building of a Kingdom: The Saudi Arabian Authority in The London Times and The New York Times, 1901–1932

The orientalist literature subjected the Middle East in an exotic way — mostly as an “Arabian Nights” society ruled by traditional sultans and/or tribal chiefs — rather than modern governance structure's “bureaucracy.” The presumption within postcolonial scholarship has been that this perception influenced the policy landscape in the United States and Europe, especially the media depictions of the oriental leaders and leadership. The paper empirically tests this hypothesis through content analysis using Weber's categorization of leadership of two newspapers of record — The New York Times in the United States and The London Times in the United Kingdom — during the period of state building in Saudi Arabia (1901–1932). I find that rather than depicting the Saudi leadership as “backward,” these newspapers in particular, tend to overstate the development of the Saudi state during this period. As Weber is best known for his three types of authority, it benefits the discipline to see how the interpretive communities of Western journalists operationalized “authority” in terms of politics and religion of Saudi Arabia as this monarchy emerged.     

Exportando “marginalidad”: Consuelo Tamayo Hernández, “la Tortajada” (1867–1957)

Abstract

Although nowadays barely remembered, the dancer and singer Consuelo Tamayo Hernández, “la Tortajada” (1867–1957), once was a Spanish performer of considerable talent. She was a diva skilled at self-fashioning who knew how to exploit her public image both on and off stage. Born in Santa Fe (Granada, Spain), Tortajada hardly ever performed in her country of birth. But although her presence on the Spanish stage was merely marginal, as a “Spanish dancer” she achieved celebrity status in the music halls of Europe and the United States. Tortajada perfectly exemplifies the mobility and cultural transfer that took place between the cosmopolitan stages at the end of the nineteenth and the beginning of the twentieth century. This article explores how Tortajada obtained international fame and success, not so much because of the authenticity of her performances—which were often contaminated by the music halls where she performed—but because of her ability to export a certain idea of Spanish “otherness” and “marginality” by staging a series of traditional movements and dances. It is by skillfully embodying a stereotype construction of “Spanishness” (elapsing it into an Oriental fantasy) and a certain type of femininity that the artist achieved international celebrity.     

“Birtherism” and Anti-Blackness: The Anti-Islamic Ante-Life of Africanized Slavery

The first black President of the United States, Barack Obama, entered office on a wave of racial optimism. But rather than transcending the United States’ racialized history, Obama's presidency has in a sense “outed” it, exposing this history's anti-Islamic origins. This article establishes a link between anti-blackness and the Islamophobic reaction to his election: late medieval and early modern European Christians could classify newly Africanized peoples as uniquely and ontologically enslaveable only because they previously had imagined Muslims as such.     

Genocide as Fact and Form

ABSTRACT

In June 2019 Canada's National Inquiry into Missing and Murdered Indigenous Women and Girls released its final report. This short Reflection focuses on the National Inquiry's supplementary legal analysis, which concerns the law of genocide. I contend that this analysis is correct in holding that the murder and disappearance of large numbers of Indigenous women, girls, and other persons ought to be understood as an ongoing crime facilitated by specific policy choices, legal decisions, and socio-economic structures. I also contend that the systemic, recurrent, and large-scale nature of this crime is best captured by the term “genocide.” I argue that formal legal definitions of “genocide” such as the one offered in the 1948 Genocide Convention, though conceptually clunky, historically contingent, and politically inadequate, are key to illuminating some of the structural forces underlying and animating a range of events that may otherwise appear unrelated. Genocide, the ultimate collectivist crime, is a concept of preponderantly legal origin, which means that serious consideration must be given to its specifically legal definition when trying to determine whether it is justifiable or appropriate to apply it to a given social phenomenon. Its standard legal definition may be unable to do justice to the specificities of different modes of group violence, but its abstract generality is also what enables those who employ it to highlight the intrinsically systemic character of such destruction. Ultimately, I suggest that Canada's genocide “debate” turns on the relation between “law” and “society”—the question, that is, of how precisely a legal definition is to be interpreted and applied under different, and often rapidly changing, social conditions.     

“Count What You Have Now. Don't Count What You Don't Have”: The Japanese Television Drama Around 40 and the Politics of Women's Happiness

Voted top new Japanese word of 2008, “arafô”, abbreviated from the English “around forty”, has been used in various media to describe women born between 1964 and 1973, who came of age during Japan's Bubble Era, and who entered the workforce as the country's Equal Employment Opportunity Lawwas being implemented in 1986. Arafô, or “forty-something women”, theoretically have more choices in relation to work and family than previous generations. During a time when society is ageing, their choices in employment, marriage and childbirth have been judged in journalistic and government discourses to be both progressive and problematic. At the same time, arafô have been associated with difficulties regarding individual freedom in the spate of television programs, books and magazines for and about them. The term and the gender trends it encapsulates were brought to national attention by the critically acclaimed 2008 television drama Araundo 40: Chûmon no ôi onnatachi (trans. Around 40: Demanding Women). We situate Around 40 in discussions about Japan's demographic crisis to argue that the series presents a wide array of life courses available for women near age 40 but ultimately recasts postwar gender roles for the 21^st-century sociopolitical climate. Around 40 shows how the diversification of life courses is interpreted in the influential medium of television drama.     

Ida Vera Simonton's Imperial Masquerades: Intersections of Gender,Race and African Expertise in Progressive‐Era America

Ida Vera Simonton, a New York socialite, visited the French colony of Gabon in 1906 and 1907. Her subsequent narratives about her stay demonstrate a very ambiguous view of the horrors of European colonialism that she claimed to despise and the amoral nature of Africans. Simonton ultimately employed her stay in Gabon to claim a right to form female self‐defence squads in New York and to act as an independent defender of white women. By carefully shaping her public persona to alternately appropriate discourses of masculine regeneration through empire and to highlight her female vulnerability, she made herself into a provocative spectacle. In an ironic twist, given how much Simonton embellished on her own experiences, Broadway producers in 1925 plagiarised her 1912 novel Hell's Playground in their successful play White Cargo. Simonton successfully sued for damages, thus upholding her highly edited version of her trip in law. Her writings expose the intersections of racial anxieties, gendered visions of empire and feminist aspirations in the United States during the Progressive era.     

The Arlington Cemetery Case: A Court and a Nation Divided

Seventeen years after the Confederate general Robert E. Lee surrendered at Appomattox, his eldest son won a sweeping victory over the federal government in the United States Supreme Court. On December 4, 1882, the Supreme Court upheld a federal trial court's ruling that the United States government's claim of title to Arlington National Cemetery rested on an invalid tax sale. The Justices thus affirmed the lower court's verdict that George Washington Custis Lee (“Custis Lee”), eldest son of Mary and Robert E. Lee, held legal title to Arlington. The Supreme Court also upheld the lower court's decision to permit Custis Lee to bring suit against the government officers who occupied Arlington. On the latter point, the Justices split 5 to 4, with a majority ruling for Custis Lee. The outcome of United States v. Lee, commonly known as the Arlington case, made it clear that the Lee family, and not the United States government, owned Arlington.     

The Swinging Gate: Katherine Mansfield's Missionary Vision

At the age of thirteen, Mansfield wrote “I want to be a Maori missionary” in her Book of Common Prayer. “The Swinging Gate: Katherine Mansfield's Missionary Vision” by Richard Cappuccio argues that Mansfield's initial diary entry is a lens through which one can read her interests in, rebellion against, and modifications of her Anglican background. The article discusses close readings of her poems “The Sea Child,” “The Butterfly,” and “To L.H. B.” as well as two of her stories — “Prelude,” and “How Pearl Button Was Kidnapped.” In addition it draws on journals and letters to focus on a relationship between Maori systems of belief, her affinities with Frank Harris's “A Holy Man (After Tolstoi),” and her final observations about G. I. Gurdjieff.     

The Changing Faces of Canada: Images of Canada in National Geographic

Carol Shields, one of Canada's and America's most popular and critically acclaimed writers, is the perfect example of the former permeability of the Canada–United States border. Born Carol Ann Warner in Oak Park, Illinois, in 1935, she married Canadian engineering student Donald Shields and immigrated with him to Canada in 1957, becoming a Canadian citizen in 1971. Between her immigration to Canada and her death nearly half a century later, Shields criss-crossed the 49^th parallel – traditionally known as the world's longest undefended border, until 9/11 drastically changed travel – with ease. Her fictional characters cross the Canada–United States border with equal ease. Shields crosses borders not only literally, but also figuratively, as she travels from genre to genre with ease. Most famous for her fiction, Shields published in many genres, including poetry, drama, short stories, biography, and literary criticism, and she incorporates these other genres in her novels. Thus, Shields shows how art can cross borders with exemplary grace.     

Laundering Leo Strauss

Robert Howse's book on Leo Strauss tries to defend Strauss by emphasizing how different he was from today's “Straussians.” In Howse's telling, Strauss's best-known followers favor war and oppression, though Strauss himself did not. To make this case, Howse relies not only on absurd caricatures of Strauss's students but on highly distorted (or highly selective) accounts of what Strauss himself wrote. Howse tries to make a positive case for Strauss as a “man of peace” by showing that Strauss supported “international law.” He makes that case by depicting “international law” as one continuous tradition since Grotius, oblivious to the many varieties of outlooks and doctrines that have invoked some version of international law. On Howse's account, those who have qualms about the United Nations or the European Union must be regarded as nihilists—hence at odds with “Leo Strauss, Man of Peace.”     

Compassionate Protector of America: The Symbolism of Old Hickory in a Jackson Woman's Mind

Serving as America's only female newspaper editor during the election of 1832, Anne Royall became possibly the first public “Jackson Woman” by supporting the chief executive's bid for re-election in her sheet titled Paul Pry. A closer look at Royall's recollections from her travels in Alabama from 1818 to 1822 shows her to be a blooming “Jackson Woman” developing before the Jackson party was even conceived. In 1828, Royall's Black Books produced a scathing indictment of American society. Both the Adams and Jackson campaigns actively recruited her for their mud-slinging contest but she declined. Three years later Royall started printing Paul Pry. The Black Books and Paul Pry gave Royall a public voice, and she was not afraid to use it. Between 1818 and 1832, Anne Royall went from being a Jackson admirer to being a public Jackson woman.     

“Talk & talk & talk”: Virginia Woolf's responses to Ireland

The complexity of Virginia Woolf's relationships with Empire can be illustrated by considering her responses to Ireland. Woolf's relationship with Ireland and Irish writers has received only cursory attention. Those critics who have addressed the topic have assumed that she responded positively to her experience of Irish “talk” on her holiday in Ireland in 1934. However, her response on that holiday reveals some underlying imperial presumptions and a sense of Ireland as stereotypically a land of “talk, talk, talk”. Indeed, this is in keeping with her responses to a wide range of Irish writers over many years (most notably, it chimes with her reading of Ulysses). This essay brings together for the first time Woolf's comments on Ireland and Irish writers, from her diaries, letters, essays and reviews, in order to show that she consistently characterised them as loquacious. Ireland was thus merely a subject of talk, a “question” that could only by discussed, and then only in stereotypical and liberalist terms. Further, Woolf associated talk with looseness and bad writing, and sought to maintain a mode of semi-privacy, apart from the “talk” that went on around her.