Marquette University Law School Faculty Blog

This is one in a series of posts relating to slavery and the Constitution as part of Marquette University’s observation of the sesquicentennial of the Emancipation Proclamation during the 2012-2013 academic year.

The United States Constitution’s infamous “Three-Fifths Clause” dictated that for purposes of representation in the House of Representatives African-American slaves were to be counted as less than full persons. The somewhat obliquely worded section of Article I, Section 2, provided:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Although this provision has traditionally been cited as evidence that the Constitution was a pro-slavery document (though never actually using the term “slavery”), historians have more recently begun to emphasize the “anti-slavery” aspects of the clause, or at least to argue that it reflects an ambivalence toward slavery among the document’s drafters. Since white women and children, free blacks, and property-less whites were counted as full persons for enumeration purposes, even though they lacked the right to vote, hold office, or serve on juries in most situations, the decision to treat enslaved people differently from others who lacked full citizenship rights was clearly to the disadvantage of those who lived in states with large slave populations.

The actual effects of the Three-Fifths Clause on Southern representation in the House of Representatives were not as significant as one might think. As it turns out, counting slaves as full persons would not have shifted the balance of power in the House of Representatives to the South at any point between the ratification of the Constitution and the onset of the Civil War. Read more »

Some number of years ago I wrote a lengthy blog post on France’s Dreyfus Affair — a post I was proud of at the time, but seems to have fallen like a tree in a depopulated forest — arguing that the Dreyfus Affair could stand to get more mileage as a metaphor for a judicial system run amok. As I explained in the post, “[t]he Dreyfus Affair is a story about an egregious abuse of the legal system, driven primarily by a powerful current of French antisemitism and by a desire to shield the French military from its own mistakes. It involves procedurally flawed court-martials, secret evidence, conspiracies, theft of government secrets, deportation to a brutal island prison, leaks to the press, leak prosecutions, riots by antisemitic mobs, and a cover-up and whitewash perpetrated at the highest levels of the French military.”

Without recapping the entire story — you can read my post for a synopsis — briefly what happened is that the French military, on discovering evidence of a spy in its midst passing information to the Germans, railroaded a Jewish artillery captain, Alfred Dreyfus, into a conviction, using secret evidence the existence of which was not revealed to Dreyfus or his counsel. The military then steadfastly refused to overturn the conviction even as it became increasingly clear that someone else was the spy, going so far as to warn the spy to be more careful in the future! It’s hard to make stuff like that up, which is why I think the Dreyfus story makes for a useful allegory.

In any event, there is a new development. The historical department of the French Ministry of Defense has placed the secret file used to convict Dreyfus on the web, on a site located at, interestingly enough, www.affairedreyfus.com. (See NY Times story.) If you read French, you can now see for yourself the sketchy evidence used to convict Dreyfus, and the forgeries used later to maintain that conviction. What’s on the affairedreyfus.com site is transcriptions of the original files, which is good, because the originals (available at the links on the bottom of this page) are difficult to read.

In 1776, as the founders were meeting to form the new government for the nation that would become the United States of America, Abigail Adams wrote to her husband John Adams and asked him “to remember the ladies” while drafting the governing documents.  She continued,

[B]e more generous and favorable to them than your ancestors [have been].  Do not put such unlimited power into the hands of husbands. . . . [I]f particular care and attention is not paid to the ladies we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.

Quoted in Susan Gluck Mezey, Elusive Equality:  Women’s Rights, Public Policy, and the Law 5 (2011) (internal citations omitted). 

John Adams responded, “I cannot but laugh . . . .” Id. To Mr. Adams, this was the first he’d heard of women’s possible discontent with the status quo.  “[Y]our letter was the first intimation that another tribe, more numerous and powerful than all the rest were grown discontented.” Id. For whatever “power” that Mr. Adams suggested that women had, it clearly wasn’t enough, for the new Declaration of Independence and Constitution failed to give any express (or even implied) rights to women. 

Mrs. Adams responded to her husband, “I cannot say that I think you are very generous to the ladies; for whilst you are proclaiming peace and good-will to men, emancipating all nations, you insist on retaining an absolute power over wives.” Id. Read more »

During the 2012-2013 academic year, Marquette University has sponsored “The Freedom Project,” which was described at the outset as “a year-long commemoration of the Sesquicentennial of the Civil War that will explore the many meanings and histories of emancipation and freedom in the United States and beyond.” Much of the recent focus has been upon the Emancipation Proclamation, which was issued in its final form by President Abraham Lincoln on January 1, 1863, an event described in impressive detail by Professor Idleman in an earlier post.

An interesting question rarely addressed is whether either the Emancipation Proclamation or the subsequently adopted Thirteenth Amendment to the Constitution applied to “Indian Territory.”

By Indian Territory, I refer to that part of the unorganized portion of the American public domain that was set apart for the Native American tribes. More specifically, I use the term to refer to those lands located in modern day Oklahoma that was set aside for the relocation of the so-call “Civilized Tribes” of the Southeastern United States: the Cherokee, Chickasaw, Choctaw, Creek, and Seminole. Read more »

My review of Stephanos Bibas’s book The Machinery of Criminal Justice is now available on SSRN.  Here is the abstract:

Stephanos Bibas’s new book, The Machinery of Criminal Justice, looks back to colonial-era criminal justice as an ideal of sorts. Criminal trials in that time were a “participatory morality play,” in which ordinary members of the community played a crucial role. In Bibas’s view, the subsequent professionalization of the criminal-justice system, as well as related developments like the introduction of plea bargaining, have led to widespread contemporary distrust of the system. The present essay reviews Bibas’s book and suggests additional reasons besides professionalization why the morality-play model broke down in the nineteenth century. Taking these additional considerations into account, the prospects for reviving the morality-play model may be even dimmer than Bibas recognizes, although a number of his proposed reforms nonetheless appear attractive.

Entitled “(The History of) Criminal Justice as a Morality Play,” my essay will appear in the Penn Law Review’s on-line journal, PENNumbra.

January 1, 2013, marks the 150th anniversary of President Lincoln’s final Emancipation Proclamation, which declared the freedom of slaves in rebellious states. The decree was controversial in Lincoln’s time and seems often to be misunderstood in ours. The objective of this blog post, accordingly, is to survey the context, chronology, and consequences of the Proclamation as we observe the sesquicentennial of its issuance.

The Context—Summer 1861 through Fall 1862

Through the latter half of 1861 and well into 1862, it was not at all self-evident that the Union would win the Civil War. Particularly in the east, the most symbolic military theater, the Confederate Army secured numerous victories or military stalemates, the latter of which were essentially as advantageous for it as the former. Despite having superior financial and industrial resources, the Union Army’s deficit of aggressive battlefield leadership, lack of well-trained or seasoned troops, and comparative unfamiliarity with the terrain repeatedly hampered Union military actions.

Lincoln was painfully cognizant of these problems, especially the operational timidity of his top brass, purportedly remarking at one point that if General George B. McClellan was not going to use the Army of the Potomac, Lincoln “would like to borrow it, provided he could see how it could be made to do something.” President Lincoln also knew that popular support for the war, as casualties mounted and the prospect of national conscription loomed, could not long endure without visible Union success in the east. At the same time, the President was aware that the Confederacy was seeking the recognition and material support of European nations such as England and France, and that every Confederate victory appeared to make this objective more attainable.

It was this array of circumstances, among others, that prompted President Lincoln to take the manifestly drastic step of issuing the Emancipation Proclamation. Only against this political and military backdrop, in fact, can the Proclamation and its timing be fully comprehended. In order to explain why this is so, it is necessary to walk through the events leading up to the Proclamation and then to examine the substance and scope of the Proclamation itself. Read more »

As part of my ongoing research into the origins of mass incarceration, I’ve been spending some quality time recently with a voluminous, fifty-year-old government report by the Federal Bureau of Prisons, Characteristics of State Prisoners, 1960.  This was a once-a-decade production by the BOP in those days, and it contains a wealth of information.

I find it fascinating to have this window into 1960, for at that time — unbeknownst to the report’s authors, of course — everything in American criminal justice was just about to change forever.  In fact, crime was already on the rise in the Northeast United States, foreshadowing a nationwide swell of violence that would continue to gather force until well into the 1970′s.  Even today, we have yet to return to the historically low levels of criminal violence of the mid-twentieth century.  And then, on the heels of the crime wave, came the great imprisonment boom — a period of unprecedented growth in American incarceration that began in about 1975 and continued uninterrupted for more than three decades.

Yes, it is easy to imagine 1960 as a more innocent time!

Using the state breakdowns from the 1960 report, I’ve drawn some comparisons between the Wisconsin of then and now:   Read more »

In recent years, commentators have talked incessantly about the United States being divided between “red” states and “blue” states.  However, as Professor Idleman’s recent post on Alabama’s 1819 admission to the Union noted, an even more fundamental distinction in pre-Civil War America was the divide between “slave” states and “free” states.  Ultimately, the fear on the part of the white population of the slave states that the free states were no longer committed to the preservation of their “peculiar institution” led to the dismemberment of the Union and a bloody four-year war to reassemble it. Read more »

On December 14, 1819, Alabama was admitted to the Union as the twenty-second state. The admission itself was not especially remarkable. Various parts of present-day Alabama had been settled by the French (and later the British) since the early 1700s, and explored by the Spanish as early as the 1540s. The territory to the west, moreover, had already been admitted as the states of Mississippi (1817) and Louisiana (1814). Not least important, Alabama’s soil and climate were amenable to cotton production, which was accelerating due to technological innovation and increased demand, such that the years preceding Alabama’s statehood had seen substantial growth in the region’s population.

What made Alabama’s admission significant, politically and constitutionally, was the situation it then posed for Congress regarding the admission of subsequent states, particularly west of the Mississippi River. Specifically, the nation was now evenly divided between free and slave states, having eleven of each. Given a federal Senate based on equal voting for every state regardless of population, this resulting parity of free and slave states made the admission of any additional state an opportunity either to expand or to restrict slavery. The South especially perceived the need to maintain parity as its influence in the House of Representatives declined relative to the North, which was experiencing (and would continue to experience) more immigration as well as greater industrial and economic growth.

This dynamic, in turn, set the stage for a new era of anti- and pro-slavery compromises and eventually—as these compromises less and less alleviated sectional tensions—a rather bloody civil war. Read more »

Reviewers of Steven Spielberg’s “Lincoln” have rightfully praised the film for its faithfulness to history and for the fine acting of Daniel Day Lewis, Sally Field, and Tommy Lee Jones, among others. As a “lifer” in legal academics, I was intrigued by the film’s engagement with law, lawmaking, and law-related ideology.

The most important “law” in the film is the 13th Amendment to the United States Constitution, and the film accurately suggests that the Amendment’s ratification in 1865 was more important in formally ending slavery than was the more famous Emancipation Proclamation. The latter, issued by President Lincoln in 1863, served only to free slaves in the ten Confederate states warring against the Union. Lincoln issued the Emancipation Proclamation chiefly as a war measure and hoped it would prompt slaves to take up arms against slave owners.   Read more »

The Declaration of Independence, the United States Constitution, the Civil Rights Act of 1866 – as great as the first two were, it was the third that put in place the concepts of American citizenship and the civil rights of all Americans that are part of the bedrock of American life, prominent historian Eric Foner said in a lecture at Eckstein Hall.

Delivering Marquette Law School’s 2012 Robert F. Boden Lecture last week, Foner focused on the origins in American law of birthright citizenship, the principle that (with immaterial exceptions) anyone born in the United States is a citizen and has basic rights that go with citizenship.

Foner, DeWitt Clinton Professor of History at Columbia University, said many people assume that the principle of “equality under the law” dates back to the origins of the United States – or, as he put it humorously, that the nation was born perfect and has gotten better ever since.

In reality, he said, the nation was definitely not premised on equality under the law in its early stages. For one thing, the Constitution itself did not give citizenship to even free black people, much less to slaves. And, Foner said, citizenship issues were controlled by individual states, rather than the federal government. Every state in the nation had laws that treated black people worse than white people, he noted.

The great changes that declared all men (women’s issues came later) born in America to have basic rights, such as the right to own property and take disputes to court, came with the Civil Rights Act of 1866, put into law by Congress over President Andrew Johnson’s veto, and the subsequent adoption of the Fourteenth Amendment to the Constitution.

The rights extended by those federal enactments and others in the Reconstruction Era were violated with impunity for many decades. But the rights they embraced eventually took hold and came alive in the Civil Rights Era of the mid-twentieth century, Foner said.

Foner said the history of America is a tale of ups and downs, of rights granted and lost. The right to citizenship extended to anyone born in the United States has become controversial in recent years as immigration issues have heated up, he observed. It is a right that arose from the “titanic struggle” of the era of the Civil War and its aftermath, and it was one of the nation’s ways of addressing the legacy of slavery and the pervasive denial of rights to black people. Given how birthright citizenship has served the country, Foner said, “we should think long and hard before changing it.”

A version of Foner’s Boden Lecture will appear in 2013, in the next Marquette Lawyer.

On October 4 and 5, 2012, the Law School held its Conference on America’s First National Crime Commission and the Federalization of Law Enforcement. The conference was the brain child of Dean Strang, a member of our adjunct faculty, who was assisted in its planning by Professor Michael O’Hear and me. Attracting large audiences of academics, lawyers, students, and the public, the conference featured lectures by historians, law professors, political scientists, and criminal justice experts.

The conference began with Professor Frank Zimring’s (Berkeley, Law) lecture, “The Accident Crime Commission: Its Legacies and Lessons,” which was delivered under the auspices of the Law School’s Barrock lecture in criminal law. Professor Zimring provided historical insight into the composition, work, and legacy of the so-called Wickersham Commission. His lecture is summarized here.

On October 5 the conference continued with three panels. The first panel provided additional historical perspective on the Wickersham Commission. Delivering papers were James Calder (Texas-San Antonio, Political Science), who placed the Commission’s work in a paradigm of “brain” and “state.” Samuel Walker (Nebraska-Omaha, Criminology) provided an overview of President Herbert Hoover’s life, emphasizing how his support for the Commission was fully consistent with his role as an early twentieth-century Progressive. John M. Cooper, Jr., (Wisconsin, History) commented on the papers while offering additional insights into President Hoover’s progressivism.

Read more »