A Look Back at the Dred Scott Decision

Thank you for inviting me to deliver the 2009 Annual Lecture of the Supreme Court Historical Society. I am a great admirer of the Society's commitment to preserving the history of the Supreme Court and to increasing the public's awareness of the Court's contributions to our nation's history.     

Many Voices,One Court: The Origin and Role of Dissent in the Supreme Court

E pluribus unum—out of many, one—is the phrase emblazoned on the Seal of the United States, which refers to the notion that a single American voice emerges from the many diverse groups that constitute the nation. The legislative and executive branches of government often act as one voice through legislative bills and executive acts, aggregating diverse interests that reflect the national will. The notion of e pluribus unum, however, is not often applied to the judiciary, a branch of government the members of which are viewed, not as outlets for the will of the people, but as gatekeepers of the rule of law. But while the Supreme Court may not speak directly for the people, its opinions speak to the people, and the methods used by the Justices to express those opinions have revealed changes in the conception of the Court's voice throughout history.     

Rewriting Australian Liberalism: The High Court's Jurisprudence of Rights

The High Court's recent rights jurisprudence has been unusually controversial. This paper argues that it is possible to evaluate the important developments in the Court's jurisprudence by examining the philosophical foundations of its understanding of rights. Relying on the distinction between utilitarian rights and natural and human rights, the paper discerns in the Court's traditional legalism as well as its more recent jurisprudence of implied rights a consistent commitment to a utilitarian conception of rights. In contrast, the paper argues that the Court's human rights jurisprudence represents a fundamental shift in its view of rights and judicial review, with far-reaching consequences for Australian constitutionalism and liberalism.     

High Court Review 2007–08: A Changing Bench,But Business as Usual?

This year's High Court Review analyses the major developments in the Court's composition and jurisprudence for the two-year period from 2007 to 2008, with a primary focus on the Court's role as chief interpreter of the Commonwealth Constitution, the political implications of the Court's vision of the federal compact and its interpretation of the concept of representative democracy in Australia. As an inherently political institution with considerable policy influence, the first part of the Review analyses the changing composition of the bench with reference to two new appointments made in 2008. The second half of the Review turns to developments in the Court's constitutional jurisprudence. The Court's role as an arbiter of federal-State relations is explored through two important section 51 decisions concerning the scope of the Commonwealth government's legislative power: Attorney-General (Vic) v Andrews and Thomas v Mowbray. Finally, the Review analyses the Court's construction of the Constitution as providing for a system of representative government in two cases concerning voting rights: Bennett v The Commonwealth and Roach v Electoral Commissioner.     

Cooper v. Aaron (1958): A Hidden Story of Unanimity and Division

Contemporary and later commentators emphasized the Supreme Court's forceful affirmation of its own authority in Cooper v. Aaron (1958). The case was the Court's first significant test of states' rights opposition denying that Brown v. Board of Education (1954) (Brown I) and the Brown II (1955) decree permitting gradual implementation were legitimate constitutional law. Indeed, following the Court's announcement of Cooper v. Aaron in September 1958, Arkansas Governor Orval Faubus and his followers closed the very same Little Rock schools the Supreme Court had ordered desegregated. Black students' rights did not prevail until summer 1959. In Arkansas and elsewhere, defiance initially triumphed over the Supreme Court's self‐assertive power. ¹     

When Nazi dreams come true: The third Reich's internal struggle over the future of Europe after a German victory

In the present article it is argued that Pieter de la Court's Political Maxims of the State of Holland presented a remarkably consistent grand strategy for Holland in relation to its Dutch allies and the European powers. I present an outline of this strategy, which was built around the accomplishment and defence of commercial goals; I sketch a historical context that takes into account the general historical shift from tribute-taking agrarian societies towards commercial wealth-generating polities, and also the violent contemporary military and ideological background against which De la Court's strategy stands out; I argue that his strategy can be understood by his use of three basic game theoretic concepts (prisoner's dilemma, assurance game and free-riding); and I stress the distinctive character of De la Court's work, by comparing the practical and strategic use of these concepts in the Maxims with the function of the same concepts in the philosophical contract theories of Thomas Hobbes and Benedict de Spinoza.     

MINDING THE BUSINESS OF THE SUPREME COURT: SOME THOUGHTS ON THE EFFECTS OF THE JUDGES' BILL OF 1925*

Twice at least in the Court's first too centuries it has found itself inundated with litigation that has outstripped its abilities to process it. Congress has from time to time had to make adjustments in the Supreme Court's jurisdiction so that the court could cope with its caseload. These “reforms” are potentially quite, important., yet few scholars have studied the effects, intended and unintended, of them. This paper reviews and criticize the scholarship on the effects of one especially interesting reform, the Judges' Bill of 1925, Along the way I offer a number of suggestions ore offered on how social scientists might in the future go about studying the effects of judical-reform.     

Democracy in Justice Kennedy's America: Reading Obergefell with Tocqueville

Justice Anthony Kennedy cites Alexis de Tocqueville in support of the majority opinion in Obergefell v. Hodges. But Kennedy's citation leaves much out of Tocqueville's original text. Looking at what Kennedy erases in his quotation of Tocqueville indicates some of the broader cultural and historic erasures that are present in the Obergefell decision (and in the Supreme Court's latter-day treatment of marriage and the family in general). Standing Obergefell next to Tocqueville yields suggestive possibilities for evaluating the evolution of recent Supreme Court jurisprudence—and recent American political thought, more generally speaking—on questions of marriage and family. Specifically, reading Obergefell with Tocqueville reveals the intellectual and political weakness of the contemporary Supreme Court.     

WHITHER “WHAT IF” HISTORY?

Richard Evans's new book, Altered Pasts, offers a perceptive but flawed critique of the field of counterfactual history. The author provides a useful historical survey of the field's recent rise to prominence and intelligently analyzes its respective strengths and weaknesses. His overall assessment of the field is quite skeptical, however. Evans cites many reasons for his skepticism, but his overall critique can be summarized in three words: plausibility, politicization, and popularity. Evans faults works of counterfactual history for their frequently implausible narratives, their promotion of political agendas, and their distressing degree of popularity. In advancing his critique, Evans makes many valid observations that call attention to important deficiencies in the field. But his view is a partial one that neglects countervailing evidence and never penetrates to the heart of why the field has left the margins for the mainstream. Evans's study provides a useful introduction to an understudied topic, but further research—ideally of a less partisan nature—is required for us to better understand counterfactual history's increasing appeal.     

High Court Review 2001: Politics,Legalism and the Gleeson Court

This article provides a general political review of recent High Court decisions that have significant implications for Australian constitutionalism. In examining the Court's judgments on issues such as cross-vesting schemes, immigration and Native Title, it seeks to articulate major themes in the Court's jurisprudence and delineate the important and changing role of the High Court in Australian politics. The article is the first in what this journal intends to be an annual review of the High Court from a political-science perspective.     

Women's history in Italy (nineteenth and twentieth centuries)

This essay surveys the development of women's history in Italy since its origins, examining the principal questions that have driven research and debate from the 1960s to the present, the ways in which women's history in other countries (notably the US) has been influential in Italy, the impact of women's history on other branches of historical research in Italy and its place — or rather lack of place ‐ in Italian universities.     

THE REFLEXIVE TEST OF HAYDEN WHITE'S METAHISTORY

This paper assesses Hayden White's Metahistory through the test of reflexivity; that is, it asks whether the book's “general theory of the structure of that mode of thought which is called ‘historical”’ applies, as it should, to its own history of nineteenth‐century “historical consciousness.” Most components of the theoretical apparatus—the various concepts invoked in the “theory of the historical work” and in the “theory of tropes”—fail the reflexivity test; further, it emerges that those same components are also seriously flawed on other grounds. The sole and partial exception is the concept of emplotment, which passes the reflexivity test, albeit with qualifications, but more particularly has the virtue of illuminating the traditional history of history against which Metahistory's own story was pitched; and this result provides an ironic and unexpected vindication of Metahistory's underlying vision. Thus the book's fundamental insight—that the form of historical writing is epistemologically consequential—can be retained, even though its two theories should now be set aside.     

The Passenger Cases Reconsidered in Transatlantic Commerce Clause History

The Supreme Court's 5–4 decision in the Passenger Cases (1849) overturned two Northern states' taxes on poor foreign immigrants. The Court's eight opinions disputed whether destitute transatlantic immigrants arriving in U.S. ports were legally and constitutionally “persons” like fugitive slaves fleeing the South, free African Americans residing in the U.S.‐Canadian borderlands, and black seamen working on ships entering Southern ports. The eight opinions issued in the case, as Charles Warren noted, raised fundamental constitutional questions concerning whether U.S. congressional or state authority was exclusive or concurrent over persons moving in interstate and international business, reflecting wider sectional struggles fostering the Civil War. ¹ More recently, Mary Bilder and others examined connections among indentured contract labor, race‐based American slavery, and the Court's antebellum Commerce Clause decisions to establish that foreign immigrants were commercial objects subject to regulation through the Constitution's Commerce Clause. ² Southerners and Northern pro‐slavery supporters argued, however, that fugitive slaves and free blacks crossing interstate and international borders were “persons” who could be regulated or altogether excluded under state police powers. ³     

ROMAN HISTORY,THEN AND NOW

The argument here is that despite the many similarities of writing the history of ancient Rome, whether the Republic or the Empire, there are stark and significant differences between Edward Gibbon and Mary Beard. In part this is a matter of style and literary genius. It is also evidence of a vast cultural difference, reflected in changing attitudes about writing history and its importance. Beard is impatient with Gibbon's oratorical formality and conceits. Her own writing is easy and unmannered. These literary habits are determined by audience as well as personality. Gibbon addresses the English ruling class and enlightened opinion. His concerns are politics, religion, and law—the interests of his readers who governed and shaped opinion. Beard is more interested in the private and personal, subjects that until recently had only a marginal place in historical writing. She relies heavily on sources that were unknown to Gibbon, and might not have interested him anyhow. Her style mirrors these concerns. She does not assume her readers have had a Classical education nor that they know the general outlines of Roman history. She has little or no tolerance for Gibbon's obsession with religion, and, at least in SPQR, slight interest in either paganism or the rise of Christianity. Her thousand‐year slice of history—Gibbon also tackled a millennium—stops well short of Gibbon's broad philosophical vision of Rome as the cradle of Europe. These contrasts in style, taste, sources, and personality are not offered in judgment, but as commentary on the continuing vitality of Roman history.     

The "Trial" of Lee Benson: Communism, White Chauvinism, and The Foundations of the "New Political History" in the United States

Lee Benson was one of the first American political historians to suggest a “systematic” revision of traditional political history with its emphasis on narrow economic class analysis, narrative arguments, and over‐reliance on qualitative research methodologies. This essay presents Benson's contributions to the “new political history”—an attempt to apply social‐science methods, concepts, and theories to American political history—as a social, cultural, and political narrative of Cold War‐era American history. Benson belonged to a generation of ex‐Communist American historians and political scientists whose scholarship and intellectual projects flowed—in part—out of Marxist social and political debates, agendas, and paradigmatic frameworks, even as they rejected and revised them. The main focus of the essay is the genesis of Benson's pioneering study of nineteenth‐century New York state political culture, The Concept of Jacksonian Democracy, with its emphasis on intra‐class versus inter‐class conflict, sensitivity to ethnocultural determinants of political and social behavior, and reliance on explicit social‐science theory and methodology. In what follows, I argue that The Concept of Jacksonian Democracy has its roots in Benson's Popular Front Marxist beliefs, and his decade‐long engagement and subsequent disenchantment with American left‐wing politics. Benson's growing alienation from Progressive historical paradigms and traditional Marxist analysis, and his attempts to formulate a neo‐Marxism attentive to unique American class and political realities, are linked to his involvement with 1940s radical factional politics and his disturbing encounter with internal Communist party racial and ideological tensions in the late 1940s at Cornell University in Ithaca, New York.     

Toward a Received History of the Holocaust

In this article, I examine both the problem of so-called postmodern history as it relates to the Holocaust and suggest the ways that Saul Friedlander's recent work successfully mediates between the somewhat overly polemicized positions of “relativist” and “positivist” history. In this context, I find that in his search for an adequately self-reflexive historical narrative for the Holocaust, Hayden White's proposed notion of “middle-voicedness” may recommend itself more as a process for eyewitness writers than as a style for historians after the fact. From here, I look at the ways Saul Friedlander's reflections on the historian's voice not only mediate between White's notions of the ironic mode and middle-voicedness, but also suggest the basis for an uncanny history in its own right: an anti-redemptory narrative that works through, yet never actually bridges, the gap between a survivor's “deep memory” and historical narrative. For finally, it may be the very idea of “deep memory” and its incompatibility to narrative that constitutes one of the central challenges to Holocaust historiography. What can be done with what Friedlander has termed “deep memory” of the survivor, that which remains essentially unrepresentable? Is it possible to write a history that includes some oblique reference to such deep memory, but which leaves it essentially intact, untouched and thereby deep? In this section, I suggest, after Patrick Hutton, that “What is at issue here is not how history can recover memory, but, rather, what memory will bequeath to history.” That is, what shall we do with the living memory of survivors? How will it enter (or not enter) the historical record? Or to paraphrase Hutton again, “How will the past be remembered as it passes from living memory to history?” Will it always be regarded as so overly laden with pathos as to make it unreliable as documentary evidence? Or is there a place for the understanding of the witness, as subjective and skewed as it may be, for our larger historical understanding of events? In partial answer to these questions, I attempt to extend Friedlander's insights toward a narrow kind of history-telling I call “received history”—a double-stranded narrative that tells a survivor-historian's story and my own relationship to it. Such a narrative would chart not just the life of the survivor-historian itself but also the measurable effect of the tellings—both his telling and mine—on my own life's story. Together, they would compose a received history of the Holocaust and its afterlife in the author's mind—my “vicarious past.”     

Parties in Parliament in the 18th Century: The Demolition of Robert Walcott and its Consequences*

The failure of Robert Walcott's attempted ‘Namierisation’ of Queen Anne's house of commons in the 1950s is now an accepted historiographical fact. Scholars working on late Stuart politics inevitably dismiss Walcott's work as misguided and misleading, and instead take as a given the existence of a two‐party structure as delineated by the standard authority on the subject, Geoffrey Holmes. This article returns to the controversy over ‘party’ in the 1960s, which reached a climax in 1967 with the publication of Holmes's magnum opus and J.H. Plumb's Ford Lectures. The purpose is not to revisit the debate, which was decided conclusively at the time, but to explore the context in which Walcott and his critics were writing; more specifically the connection between Walcott's work and the approach to 18th‐century political history pioneered by Sir Lewis Namier. Using private correspondence between the principals, it argues that Walcott did not properly follow Namier's methods, and was identified as a Namierite largely because Namier was unwilling, for personal reasons, to disown him. In the long run, this reluctance proved damaging, accelerating the decline in Namier's reputation in the 1960s and the shift towards different forms of political history.     

What More Is There to Say? Revisiting Agamben's Depiction of Homo Sacer

This article argues that Agamben's “paradigmatic method” leads to particular choices in his depiction of the figure of the homo sacer. Reviewing this project also suggests that there's more to history—the example given is the story of homo sacer—than Agamben's method would ever leave us to say. In other words, there are still resources in the tradition for something new, and thus there is much more left to say about its legacies.     

Social Science and the Discovery of a 'Post-Protestant People': Rowntree's Surveys of York and their other Legacy

Abstract

Despite the bitter criticism it evoked, both from clerical professionals and lay experts on its publication in 1951, Rowntree's and Lavers's English Life and Leisure survived to become an enduring classic of modern British social science. Yet, in many ways, the respectability it eventually achieved now masks the true radicalism of its findings. Building on fifty years of his own social survey work in York, Rowntree (and his collaborator) were able to show the full extent of the decline of church organization, affiliation and attendance in twentieth-century Britain. They also demonstrated just how these processes had particularly affected the Protestant community — most notably the Nonconformist Protestant community — in England. Finally, they went on to demonstrate how that — institutional — decline was increasingly related to changes in, and a diminution of, specifically Christian beliefs amongst the population as a whole. Their results anticipated many of the conclusions of the 'pessimistic' sociologists of religion in the 1960s. They also constitute a profound critique of 'optimistic' historical revisionism in more recent years. As such, they are perhaps more relevant than ever.