Legal Historian G. Edward White Releases Second Installment of 'Law in American History'
University of Virginia School of Law acclaimed legal historian G. Edward White has released the second installment in his "Law in American History" series, which tracks foundational historical legal issues from after the Civil War until the 1930s.
"Law in American History, Volume II: From Reconstruction Through the 1920s," published by Oxford University Press, covers issues intertwined with the transition from agrarian to industrial-driven life, the rise of social mobility, the expansion of the political franchise, the incorporation of the final continental states into the Union, massive immigration, the invention of new communications tools, the emergence of the U.S. as a global power, and the cementing of the Supreme Court’s role as an institution addressing the major contested social, political and economic issues in American culture. The overarching theme of the book is the incomplete transition of American society from what White calls a “premodern” to a fully modern stage.
"Over the course of the years covered by the book, one set of cultural experiences, and ways of thinking about them, is being replaced by another set of experiences and attitudes," White said. "But that 'other' — the experiences of modernity and the attitudes of modernism — isn't fully in place."
White, the David and Mary Harrison Distinguished Professor of Law, has published 16 previous books and has won numerous accolades, including final listing for the Pulitzer Prize in history, the Silver Gavel Award from the American Bar Association, the Triennial Coif Award from the Association of American Law Schools, the Littleton-Griswold Prize from the American Historical Association and the James Willard Hurst Prize from the Law & Society Association.
One of the major themes of the book, White said, is how law during the time period it covers goes from being considered a set of timeless foundational principles — not unlike foundational principles of religion — to being viewed as more of a changing set of rules fashioned by persons given the authority to interpret legal sources, notably judges.
"When a judge has a decision that is overruled in the pre-modernist world, that decision is called 'incorrect,'" White said. "As if you can always go back to the law and find the 'correct' timeless principle. Over time those conceptions of law and judging are replaced by ones that associate law with the power and will of people who hold authoritative positions, including judges."
History demonstrates, White noted, that although law in America has consistently been regarded as transcending the short-run interests and concerns of humans, those interests and concerns have sometimes overwhelmed efforts to use law to resolve deeply contested social controversies.
White’s "Law in American History" series covers some "dark themes," including how legal institutions have struggled to address issues related to Native- and African-Americans. The slavery issue in particular, he said, was one that none of the nation's legal institutions were capable of successfully resolving in the years prior to the Civil War; it was only resolved with the triumph of the Union Army and the mandated emancipation of slaves.
"Every one of [the institutions] failed to reconcile the existence of slavery with either the idea that America had a natural rights tradition or with the fact that the territory of the United States had dramatically expanded,” White said. “Territorial expansion raised the realistic possibility that slavery, rather than dying out, might flourish for the indefinite future, escalating the significance of its patent inconsistency with the foundational American principle that 'all men are created equal.' Mid-19th-century American legal institutions were unable to resolve that inconsistency, and, even after slavery was abolished, it persisted in the law of race relations from the Civil War through the 1920s.”
In order to keep his scholarship fresh, White said, he often focuses on subject matter on which he isn't expert when beginning scholarly projects, which have included biographies of Supreme Court Justice Oliver Wendell Holmes Jr. and alleged Soviet spy Alger Hiss and a book on the early- and mid-20th-century history of baseball. His "Law in American History" series, White said, was initially conceived along different lines: the publisher wanted him to write a one-volume narrative of subjects and topics on which he had already written, anticipating that his approach to those topics would serve as a counterpoint to an existing one-volume history of American law. White agreed, but only if he could do multiple volumes, and only if he could produce a work whose emphasis would be on the complicated relationship between law and central themes in American history.
"I've tried to take, as far as possible, a fresh look on issues and topics that were regarded as central, and contested, by the historical actors who were experiencing them, and to examine how law was connected to those issues and topics."
Over the course of his first two volumes, White said, “I’ve discussed some very well-known historical episodes, such as the severance of America from the British Empire, the framing of the Constitution, the emergence of the Supreme Court of the United States as a powerful institution, and the dissolution of the Union in the decades prior to the Civil War. I’ve also addressed some topics on which comparatively little has been written by legal or constitutional historians, such as the relationship of law to the emergence of agricultural house holding in the 18th century, the role of law in the 19th-century opening up of the trans-Mississippi West, and the transformation of the constitutional jurisprudence of foreign relations law in the late 19th and early 20th centuries. In some instances, such as with the legal treatment of African-Americans and Native Americans, I’ve sought to trace a topic over an expansive segment of time, from the colonial years through the first decades of the 20th century, to show how recurrent, and confounding, the legal issues involving those communities have been throughout American history. I'm hoping to change the way people have conventionally thought about some familiar historical episodes and themes, and call their attention to other understudied ones.”
White said his third and final installment of the "Law in American History" series, covering the years from 1930 through 2000, is forecast for release in 2020.