Law Professors Reflect on Brown v. Board of Education

Posted on Categories Legal History, Legal Scholarship, Marquette Law School, Race & LawLeave a comment» on Law Professors Reflect on Brown v. Board of Education

phoebewilliamsThe United States Supreme Court’s 1954 decision in Brown v. Board of Education is without question one of the most significant cases in modern constitutional law.  It was also a defining event in the lives of a generation of American law teachers.  Vanderbilt University Press has recently published Law Touched Our Hearts: A Generation Remembers Brown v. Board of Education (2009). The book, edited by Professors Mildred Robinson and Richard Bonnie of the University of Virginia, contains forty essays, each written by a law professor who discusses the way that his or her life was affected by the Brown decision.

The forty contributors vary considerably by gender, race, and ethnicity.  A majority, but only a majority, grew up in states where legally segregated schools existed at the time of the Brown decision.  Some are old enough to have remembered the day that the decision was handed down; others were born after it was already the law of the land.  But all, to one extent or another, believe that their personal and professional lives have been profoundly shaped by the Brown decision.

I read Law Touched Our Hearts with great interest.

Although I am too young to remember the actual announcing of the Brown decision — it was handed down two weeks before my second birthday — it was clearly a defining event in my life.  In 1956, my family moved from Giles County, Virginia, where I was born, to White Sulphur Springs, West Virginia.  Two years earlier, after an attempt to integrate the White Sulphur schools in response to Brown, the town and nation witnessed the first post-Brown, anti-integration riot in the United States which led the county school board to cancel the integration experiment after only one week.  In 1956, integration occurred a second time, this time as the result of a federal court order.  My mother started teaching at White Sulphur Elementary that fall, and when I started school there two years later the fate of integrated education seemed anything but certain.  In 1959, we moved back to Virginia where the schools were completely segregated, and I experienced integration a second time in 1964, when Giles County decided to voluntarily close its black schools and incorporate the entire black and white population into a single school system.  (Incredibly, Giles County was the first county in Virginia to do this.)

I was also interested in Law Touched Our Hearts because eight of the contributors are good friends of mine.  I can say, though, without fear of contradiction, that the most moving and most poignant essay in the entire collection is the one written by my Marquette colleague Phoebe Williams.  Phoebe’s essay, titled “Segregation in Memphis,” tells the story of her experiences as an 8-year old school child in segregated Memphis schools when the Brown decision was handed down.  Although the Brown edict was to be adopted with “all deliberate speed,” the “promises of Brown,” as Phoebe puts it “remained unrealized” in Memphis.  There had been no school integration in Memphis when Phoebe graduated from high school in 1963, and there would be none for years to come.  Her first experience with integrated education came when she enrolled at Marquette as an undergraduate.

Phoebe’s essay wonderfully captured the spirit of optimism that arose with the handing down of the Brown decision, as well as the disappointment that accompanied the failure of southern states to live up to its mandates.

I was already familiar with much of Phoebe’s account because of an appearance she made several years ago in a class on the History of the Civil Rights Movement that I was teaching in the College of Arts and Sciences.  I invited Phoebe to come speak to the class about her experiences growing in the era of segregation.  The students in the class were riveted by her presentation, even though most were northerners and had been born more than two decades after the Brown decision.  Many students later told me that Phoebe’s presentation was the highlight of the class.

I strongly recommend Law Touched Our Hearts to anyone interested in the history of civil rights in the United States, but I insist that anyone with any sort of Marquette connection should read Phoebe Williams’ contribution to the collection (pp. 123-134).

Noted Historian and Milwaukee Native Kenneth Stampp Passes Away

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peculiar1For the second time in recent weeks, a major Civil War era historian whose work was enormously important for American legal and constitutional history has passed away.  Kenneth Stampp, Professor Emeritus of History at the University of California-Berkeley, died this past Friday at age 96, less than two months after the death of Harvard’s David Herbert Donald.

Stampp’s 1956 work, The Peculiar Institution: Slavery in the Antebellum South, revolutionized the study of American negro slavery, once and for all dismissing suggestions that the institution was fundamentally benign or that African-Americans quietly acquiesced in their slave status.  No book did more to demolish the moonlight and magnolias view of antebellum southern history.

His 1965 work, The Era of Reconstruction, 1865-1877, destroyed the myth that white Southerners were the primary “victims” of the Reconstruction years.  This work was among the first to link the Reconstruction period to the modern civil rights movement, which was very much underway during the time that Stampp wrote.

Stampp was also the author of numerous other historical works, including And the War Came: The North and the Secession Crisis (1950) and America in 1857: A Nation on the Brink (1990).  Over the course of his long career, he won most of the major awards available to American historians.  He was also instrumental in the training of a generation of Southern and Civil War era historians whose own work built upon the insights of their mentor.  His former students include such historical luminaries as William Freehling, Leon Litwak, James Oakes, Joel Williamson, William Gienapp, John Sproat, Robert Starobin, Robert Abzug, and Reid Mitchell.

What is less well known is that Kenneth Stampp was a native of Milwaukee.  He was born in the Cream City on July 12, 1912, the son of Oscar Stampp, a naprapath (chiropractor), and Eleanor Schmidt Stampp, a homemaker.  While his parents were native-born Americans, his grandparents were all born in Germany or Switzerland, and Stampp grew up in a Protestant neighborhood on the north side of Milwaukee where German was spoken as frequently as English, at least until the onset of U. S. involvement in the First World War.

Stampp attended Washington High School, from which he graduated in 1931 during the depths of the Great Depression.  He began college at Milwaukee State Teachers College (now UWM), but left abruptly in 1933 when one of his professors sought to discourage him from continuing to pursue his goal of becoming a high school history teacher.  (The professor thought that Stampp should pursue a career in elementary education.)

After withdrawing from Milwaukee State, Stampp’s German Methodist father suggested that he enroll in Marquette University instead.  As Stampp later recounted, “My father said, ‘Well, would you like to go to Marquette University?’ I said, ‘I’m not going to that Catholic institution.’ I have to tell you another thing: there was a lot of anti-Catholicism in my family because of their kind of Protestantism. My father had been very anti-Catholic, so I had no trouble saying, “Look, I’m not going to that Catholic college.”

After briefly considering enrolling in Waukesha’s Carroll College, Stampp instead enrolled at the University of Wisconsin-Madison, from which he received his B.A. (1935), M.A. (1936), and Ph.D. (1942) degrees in history.  His first teaching positions were at the University of Arkansas and the University of Maryland.  He joined the faculty of the University of California in 1946 and remained there until his retirement in 1983, except for stints as a visiting professor at Harvard, Oxford, the University of London, and the University of Munich.

A full transcript of Stampp’s 1998 oral autobiography, which includes the story regarding his boyhood in Milwaukee and his decision not to attend Marquette University, can be found online here.

Which Declaration of Independence?

Posted on Categories Legal History, Political Processes & Rhetoric1 Comment on Which Declaration of Independence?

800px-summerfest_2008_fireworks_70551When you are at your Fourth of July cookout or fireworks display this week, see if anyone mentions the Declaration of Independence.  If they do, ask “which Declaration of Independence?”  After all, there are more than one.

 In her 1997 book American Scripture: Making the Declaration of Independence, historian Pauline Maier describes the events leading up to July 4, 1776 and points to multiple “other” Declarations of Independence issued by local legislative bodies earlier that year.  Declarations were issued in a variety of places, including Buckingham County (Virginia), Charles County (Maryland), and Natick, Massachusetts.  In most cases, these “other” Declarations took the form of instructions from the citizens of a particular geographic area to their elected representatives in the state legislature or in the Continental Congress.  After recounting the unjustified treatment of the colonies by the Crown, these documents authorize the peoples’ representatives to vote in favor of severing ties with England.  However, some of these Declarations take a different form, such as a judge instructing a grand jury on the source of their legal authority in the absence of a Royal Governor. Continue reading “Which Declaration of Independence?”

Why We Fight

Posted on Categories Legal History, Political Processes & Rhetoric1 Comment on Why We Fight

united_we_win31I often wonder why it is that some people disagree with my political views.  My logic is unassailable, the breadth of my historical knowledge is unmatched, my moral foundation cannot be questioned, and I am far more charming and better looking than my opponents.  Why don’t they agree with me?

My summer project was to seek an answer to this mystery.  I chose three books to read that I thought would provide some insight into the ideological fault lines that seem to run through every facet of our daily lives (and indeed seem to run through this very blog).  What follows are the lessons that I have learned.  I suppose other readers might draw different lessons.  My recommendation is that you read these books for yourself.

My first goal was to understand why the “big government” charge persistently leveled by Republicans against the Obama Administration seems to resonate with some people, but not with others.  Some clues are provided by Gary Wills in A Necessary Evil: A History of American Distrust of Government.  Writing some ten years ago, Wills documents the origin and growth of the arguments against “big government” and in favor of individualism and local control over the course of our nation’s history.  Over time, he argues, these disparate strands of thought have coalesced into a more general anti-government creed.  The specifics of this creed – the belief that amateur, local and voluntary conduct creates greater public well being than professional, centralized, and mandatory regulation — resembles the political philosophy currently espoused by many of President Obama’s critics.

Continue reading “Why We Fight”

Art History Mystery, Part 2

Posted on Categories Legal History, Marquette Law School4 Comments on Art History Mystery, Part 2

figure-2In the previous post, I detailed how the figure to the left of Moses must be Sir William Blackstone. I had thought that the figure to the right of Moses was King Solomon. The iconography of the throne, crown, royal purple, and scales all point to Solomon. However, this figure is beardless, and artists have traditionally depicted Solomon as a bearded, often old, king (see, e.g., a ninth-century German illuminated Bible, and Renaissance depictions such as the panel of Solomon meeting the Queen of Sheba panel from Ghiberti’s famed “Golden Doors” of the Florentine Baptistry, and also the fresco by Piero della Fransceca in Arezzo). On the other hand, artists from later centuries did portray the famous ruler as clean-shaven (see, e.g., this 18th-century Russian icon, and an engraving by the 19th-century master Gustav Doré).

However, noticeably absent from the stained glass was any iconography of a sword (cf. ‘splitting the baby’ from 1 Kings 3:16-28). A fellow law student held that the figure was really King David.

One authority, though, holds that the figure is neither David nor Solomon. During his spring 2008 visit to the law school, Judge Pryor of the US Court of Appeals for the Eleventh Circuit, who had identified Blackstone, offered Lady Justice as the likely candidate. This would account for the beardlessness, and the classic imagery of the scales is present. However, absent are the iconic sword and blindfold, and Lady Justice usually is not crowned. It’s a tough call. I welcome feedback to solve this art history mystery….

Art History Mystery, Part 1

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blackstoneAs I have always loved stained glass windows, one of my favorite locations in the law school is Eisenberg Hall. However, the trio of figures in the north set of windows bear no label, so I was curious about their exact identity. The center figure holding the stone tablets of the Law is of course Moses. Following this Biblical theme of lawgivers, I surmised that the figure to the right (as one looks at Moses) seated on the throne was King Solomon (more on the next blog post).  I also guessed that the figure to the left, in the judicial wig, was likely the 18th century jurist Sir William Blackstone. I also considered Sir Isaac Newton, as some images of Newton depict him with the typical 18th-century long wig and cravat (see e.g., the 1-pound note from the Bank of England). However, in these depictions, Netwon lacks the black robes that the figure in the stained glass wears. And while he divined the Laws of Nature, Newton would not be the most obvious choice for a law school library reading room (unless perhaps the artists were commenting drolly on the gravity of legal tomes).

As stained glass was the Scripture for the (often illiterate) medieval masses, I wanted to know for certain who the two figures flanking Moses were. Accordingly, within the first few weeks of Law School (September 11, 2007, to be exact), at an evening social in Eisenberg, I asked Dean Kearney, and he enjoined me with the task to find out. Continue reading “Art History Mystery, Part 1”

David Herbert Donald

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The noted historian, Professor David Herbert Donald of Harvard University, passed away on Sunday, May 17, at the age 88.  Professor Donald was a two-time winner of the Pulitzer Prize for Biography and was widely recognized as the preeminent Lincoln scholar of the twentieth century. Although not normally classified as a legal or constitutional historian, scholars who work in those fields are enormously indebted to Donald’s work, particularly in regard to the era of the Civil War and Reconstruction.

Born in the central Mississippi hamlet of Goodman in 1920, Donald was a descendant of both Confederate and Union soldiers.  His father, Ira Unger Donald, was a farmer, and his mother, Sue Ella Belford Donald, a school teacher.  Donald was educated at Holmes Junior College in Goodman; Millsaps College, in Jackson, Mississippi; and the University of Illinois at Champaign-Urbana, from which he received a PhD in History in 1946.  At Illinois, he was a student of James G. Randall, the most distinguished Lincoln scholar of the first half of the twentieth century.  Randall was the author of Constitutional Problems Under Lincoln (1926), the first major study of Lincoln’s relationship to the Constitution, and of the classic 1937 text, The Civil War and Reconstruction.  Randall later selected Donald to prepare a revised edition of the later work, which was published in 1961 (just in time for the Civil War centennial) as Randall and Donald, The Civil War and Reconstruction.  The chapters dealing specifically with the Civil War were published separately as The Divided Union (1961).

Donald’s doctoral dissertation was also his first book.  A study of Lincoln’s law partner and early biographer, Lincoln’s Herndon (1948), was the first of Donald’s many works that critically evaluated the received wisdom concerning the life and times of the sixteenth president.

Later works included Inside Lincoln’s Cabinet (1954), an edition of the diaries of Treasury Secretary Salmon Chase; Lincoln Reconsidered: Essays on the Civil War Era (1956, 1960, 2001), a collection of singularly brilliant essays; Why the North Won the Civil War (1960); Charles Sumner and the Coming of the Civil War (1960), which won the Pulitzer Prize; The Politics of Reconstruction, 1863-1867 (1965), which made use of recent political science scholarship to reexamine the political dynamic of Congressional actions during the last part of Lincoln’s presidency and the first part of Andrew Johnson’s; Charles Sumner and the Rights of Man (1970); Liberty and Union (1978), a new textbook history of the Civil War era that reflected his thinking since the publication of The Civil War and Reconstruction in 1961; and Look Homeward: A Life of Thomas Wolfe (1987), which also won the Pulitzer Prize.

He was also one of the six historians who contributed to The Great Republic (1977), a highly publicized and somewhat controversial effort to produce a new college-level textbook on American history authored by the country’s most prominent historians. (The six historians were Donald, Bernard Bailyn, Gordon Wood, David Brion Davis, Robert Wiebe, and John L. Thomas).

In 1995, he published his long awaited biography of Abraham Lincoln, entitled simply Lincoln, which paid special attention to Lincoln’s constitutional views and focused upon the way in which Lincoln experienced the events of the Civil War era. Two follow-up volumes, Lincoln at Home: Two Glimpses of Abraham Lincoln’s Domestic Life (1999) and We Are Lincoln Men: Abraham Lincoln and his Friends (2003), examined other aspects of his life.  At the time of his death, Donald was working on a biography of John Quincy Adams that focused on Adams’ career after his defeat by Andrew Jackson in the 1828 presidential election.

Though much praised as an elegant stylist whose work was readily accessible to general readers, he was also deeply involved in the methodological debates that occurred within the historical profession during his career.  His willingness to incorporate the insights of the social sciences and psychology and psychiatry into his work, while retaining a traditional historian’s hostility to jargon and academic fashion, gave his work a distinctive character.

Donald began his academic career at Columbia University.  He subsequently taught at Smith College before returning to Columbia as a full professor in 1957. In 1959-60, he held the distinguished Harmsworth Chair in American History at Oxford University. He later joined the faculty at Princeton and then at Johns Hopkins before coming to Harvard in 1973 as the Charles Warren Professor of American History.  In 1978, he became the Chair of the Harvard’s History of American Civilization program, initially co-chairing the program with his long-time friend Daniel Aaron and later directing it on his own.  He retired from full-time teaching at Harvard in 1991, when he was named Professor Emeritus.  In honor of his 65th birthday, his former students produced a festschrift titled A Master’s Due: Essays in Honor of David Herbert Donald.

He is survived by his wife of many years, Aida D. Donald.  Mrs. Donald was an historian and biographer of Theodore Roosevelt, as well as, for many years, executive editor of the Harvard University Press.  The Donalds had one son, Bruce Randall Donald of Chapel Hill, N.C., and two grandchildren.  During his years at Harvard, Donald resided on Lincoln Road, in the town of Lincoln, Massachusetts.

Donald was invited to the White House by John Kennedy and George W Bush.  In the latter part of his career, he was frequently seen on television in documentaries and on stations like C-Span.  Since 2005, the Abraham Lincoln Presidential Museum in Springfield, Illinois, has awarded the “David Herbert Donald Prize” for excellence in Lincoln studies.

I first learned about David Donald while an undergraduate at Oberlin College in the early 1970’s.  One of my professors, David Rankin, was a former Donald student who was teacher in courses on African-American and Southern history.  Reading Donald’s still controversial arguments that the Confederacy collapsed because it was too democratic and that both abolitionists and pro-secession “fire-eaters” were driven to their extreme positions in part because of a form of status anxiety brought about by an increasingly capitalistic society made me realize that history was something more than just a chronicle of past events or the application of broad theoretical principles to the past (which was then much in fashion).

I also had the good fortune to later study under him at graduate school at Harvard in the late 1970’s and early 1980’s.  He held the bar high, but he was also unfailingly gracious to his students and generous with his time.  Although he is primarily associated with Lincoln and his era, his knowledge and interests were much broader than just that period and he supervised dissertations on a wide variety of topics.

He did, however, draw the line at the history of sports.  After I passed my PhD general examinations, I met with him to discuss possible dissertation topics.  He asked me what I thinking about, and I mentioned to him that I found it fascinating that in 1850 baseball was basically a folk game played informally with no set body of rules.  However, by 1870, the rules had been standardized, there were professional leagues, and the sport was widely hailed as “America’s national game.”  I told Donald that I thought it would be interesting to try to trace out the process by which this occurred, particularly since it happened against the backdrop of the Civil War and Reconstruction.  Donald appeared to toss my idea around in his head for a minute or two, and then said, in his charming Southern voice, “You know, Gordon, I don’t believe that I could come up with a less interesting historical question.”  On that note, I decided to write on the history of the legal profession in the South.

Professor Donald was also a brilliant classroom teacher, as anyone who attended his lectures on the United States in the nineteenth century can attest.  His undergraduate classes at Harvard always filled the large lecture halls in which they were scheduled.  I had the opportunity to serve as his teaching assistant and whatever success I have had as a teacher has largely been the result of his mentoring and tutoring.

With his passing, the historical profession, and the United States, has lost one of its giants.

Milwaukee Cardinals Baseball Team v. Major League Baseball (1953): The Antitrust Case That Might Have Changed the Face of the National Pastime

Posted on Categories Legal History, Sports & Law6 Comments on Milwaukee Cardinals Baseball Team v. Major League Baseball (1953): The Antitrust Case That Might Have Changed the Face of the National Pastime

Few baseball fans today know how close the St. Louis Cardinals came to moving to Milwaukee in January of 1953.  Had such a move occurred, and had Major League Baseball attempted to block it, organized baseball’s vaunted antitrust exemption might have ended decades ago.

That a major league team might be relocated in time for the 1953 season was a frequent topic of Hot Stove League conversation following the conclusion of the 1952 season.  Although no major league team had switched its base city since 1903, the Congressional hearings on baseball conducted by the Celler Committee in 1951 and 1952 had revealed considerable dissatisfaction with the current major league line-up which featured 16 teams in ten cities, none of which were west of St. Louis.  There were three teams in New York, two each in Boston, Chicago, Philadelphia, and St. Louis, with single teams in Cincinnati, Cleveland, Detroit, Pittsburgh, and Washington.  With little support among current owners for increasing the number of major league teams, the logical alternative was to move some of the teams from the multiple-team cities to cities that currently had only minor league baseball.

Much of the speculation focused on St. Louis.

While St. Louis had been the fourth-largest city in the United States in 1902 when the American League’s Milwaukee Brewers moved there to compete with the National League’s Cardinals under the new name of the Browns, St. Louis’ growth had not kept pace with that of other cities in the first half of the twentieth century.  Many observers questioned the wisdom of continuing to have two teams in the Gateway city.  On September 23, 1952, the New York Times reported that the St. Louis Cardinals might be Milwaukee bound because of disagreements regarding their lease of Sportsman Park which was owned by their American League counterparts, the Browns.  (Milwaukee’s new Milwaukee County Stadium made the city a particularly attractive destination for a baseball team needing a new home.)  A December 23, 1952, story in the Washington Post predicted that it would be the St. Louis Browns, not the Cardinals, that would be moving to Milwaukee within the next two or three years.  (The Browns were then owned by Bill Veeck, the former owner of Milwaukee’s minor league team, the Brewers.)

The situation came to a head dramatically on January 28, 1952, when Cardinal owner Fred Saigh pled “no contest” to charges of income tax evasion in federal court in St. Louis and was sentenced to 15 months in prison.  Fearing that his fellow owners would strip him of his franchise, Saigh immediately agreed to give up control of the Cardinals and to sell his 90% ownership stake in the team.  At that point several Milwaukeeans, anxious to have major league baseball return to their city, undertook to bring the Cardinals to Wisconsin.

A January 30, 1953, New York Times article identified Fredrick C. Miller of the Miller Brewing Company, as one of several individuals reportedly interested in purchasing the Cardinals.  Actually, by that date, Saigh had already offered to sell the Cardinals to Miller for $4.5 million dollars, but Miller had balked at the price.  The Milwaukee Journal reported that same day that Miller had declined Saigh’s initial offer, but the paper was optimistic that a deal could still be worked out.  Almost immediately after Miller declined Saigh’s initial offer, a “Milwaukee syndicate” (which may have included Miller) made a “feeler offer” for the team that Saigh rejected.  Potential buyers from Houston and St. Louis were also bidding for the team, and on January 31, the Associated Press reported that several “undisclosed groups” had made offers to purchase the club but that Saigh intended to sell to St Louis interests.

In spite of the reports that he intended to keep the team in St. Louis, Saigh continued to negotiate with the Milwaukee group which offered $4.1 million dollars for the Cardinals during the first week of February.  On February 14, Saigh was apparently close enough to accepting the Milwaukee offer that Cardinal front office employees were told that if they wished to move with the club to Milwaukee their moving expenses would be paid by the team.   However, his reluctance to sell the team to owners who would move the club away from St. Louis led Saigh to put the Milwaukee offer on hold while he continued to search for a local buyer.

No one has convincingly explained Saigh’s refusal to sell the team to the Milwaukee buyers.  On February 21, the United Press reported that a week earlier Saigh had been close to agreeing to transfer the Cardinals to the Milwaukee ownership group.  According to the UP Saigh had advised the Anhauser Busch representatives that he was about to close a deal with the Milwaukee group, and if the St. Louis-based brewery wanted the team it would have to act immediately.  And it did, offering Saigh $3.75 million for the team, a figure less than the Milwaukee offer, but apparently large enough to satisfy Saigh.  The same day, the Wisconsin State Journal, a Madison daily, quoted Saigh as saying that once he had an outside bidder willing to pay a fair price for the club, he offered it to Anheuser-Busch at the same price.  The outside bidder was not identified but the way the story is positioned on the paper’s sports page, it seems clear that most readers would know that the buyer was from Wisconsin.

Saigh may well have been using outside bidders from Milwaukee (and possibly other cities) to establish a market price for the team and to convince local bidders that even though he was being forced to sell the team, he was not going to sell it for a fire-sale price.  By mid-February he clearly intended to sell the Cardinals to a St. Louis buyer if one could be found who was willing to pay close to the team’s actual value.  And when he found such a bidder in Auggie Busch, he sold him the team.  This was Saigh’s own explanation and one accepted by most sports journalists at the time.

However, it is also possible that Saigh, desperate to extricate himself from an embarrassing situation, was worried that his fellow owners might veto the sale of the popular Cardinals to individuals who planned to move the team.  Although the Cardinals had attendance issues in St. Louis, they were one of the most widely-followed teams in the United States and had an extraordinarily large fan base in the South and in the states of the western plains.

If this had been the case, and had Saigh sold the team to the Milwaukee buyers anyway, then it seems likely that the owners would have failed to approve the sale.  A second possible obstructionist scenario would have involved the minor league Milwaukee Brewers (owned by Lou Perini who also owned the major league Boston Braves).  Under the terms of the National Agreement (the contract arrangement that bound together the major and minor leagues) the Brewers could have invoked their territorial rights to block the movement of another organized baseball team into their territory.  If either of these scenarios had occurred the new Milwaukee owners would have had strong reasons to bring suit against organized baseball under the federal antitrust laws.  Such an action almost surely would have been brought in federal court in Wisconsin, where a sympathetic judge and jury were likely to be found.

If such a suit had been filed in 1953, what would have been the result?

One might think that organized baseball would have been insulated from such a lawsuit because of its antitrust exemption.  However, in January and February of 1953, the baseball antitrust exemption was anything but secure.  The Toolson v. New York Yankees decision that would confirm the exemption would not be handed down until the following November, and many observers in 1953 expected the baseball antitrust exemption to go the way of the insurance and manufacturing antitrust exemptions and other pre-New Deal limitations on the scope of the Sherman Act.

Four years earlier, the prestigious United States Second Circuit Court of Appeals had ruled in the case of Gardella v. Chandler that Major League Baseball was no longer exempt from the federal antitrust laws, and baseball had decided not to challenge that ruling by bringing the matter before the Supreme Court.  Moreover, when dealing with broadcasting issues involving Major League Baseball and the National Football League in the early 1950’s, the Justice Department had consistently taken the position that the Sherman Act clearly now applied to organized baseball, at least in regard to broadcasting issues.

On the other hand, in December 1952, the Ninth Circuit Court of Appeals had ruled that the antitrust exemption created by the 1922 Supreme Court decision in Federal Baseball was still valid.  On February 20, 1953, just as Fred Saigh decided to reject the Milwaukee offer to purchase the Cardinals, the Sixth Circuit reached a similar decision upholding the continued validity of the exemption.

The confusion was resolved that November when the Supreme Court ruled 7-2 in Toolson v. New York Yankees that the baseball antitrust exemption survived, at least until Congress chose to repeal it.  However, Toolson and its two companion cases involved issues related to the operation of minor league baseball, an institution somewhat irrationally valued by many Americans and whose continued existence could be threatened by the application of the antitrust laws to the web of restrictions on players and team owners that made it viable.  None of the three touched on the issues of territorial exclusivity or the relocation of major league franchises.  While the Milwaukee case would have arisen too late to be consolidated with Toolson, the existence of a franchise relocation case hovering in the background might have prompted several of the Supreme Court justices to view the issues in a different light.

Had the owners nixed the transfer and had the Milwaukee interests sued Major League Baseball under the Sherman Act, the entire history of baseball and antitrust might have turned out differently.

As it turned out, Milwaukee baseball fans quickly forgot about the Milwaukee Cardinals.  On March 18, 1953, only a month after Fred Saigh turned down the Milwaukee offer, Lou Perini, the owner of the woeful Boston Braves, announced that the Braves were moving immediately to Milwaukee and would play there during the 1953 season.  (Because Perini also owned the Milwaukee Brewers, there was no issue of territorial exclusivity.  The minor league Brewers were quickly dispatched to professional baseball-less Toledo, which was happy to take the team.)

Almost as quickly as the disappointing saga of the Milwaukee Cardinals ended, the glorious saga of the Milwaukee Braves began.  Playing in their new stadium, the Braves quickly shattered the all-time major league attendance record and within four years were playing the New York Yankees in the World Series.  The Cardinals did not make it back to the World Series until 1964.

Although the major league owners readily approved the transfer of the Braves from Boston to Milwaukee, it is not necessarily the case that they would have approved the transfer of the Cardinals.  In 1952, the American League owners rejected St. Louis Browns owner Bill Veeck’s various proposals to move the Browns to Milwaukee, Los Angeles, Miami, or Baltimore, but Veeck was especially disliked by his fellow owners, who may have opposed his proposals on purely personal grounds.  Although the Cardinals were not drawing exceptionally large crowds in the early 1950’s, they were not an economic basket case like the Boston Braves or the Browns.  (In 1952, the Cardinals averaged just under 12,000 fans per game, fourth best in the National League. The Braves, in contrast, averaged only 3600 fans and the Browns only 6600.)

It is also interesting to speculate what might have happened had the Cardinals, not the Braves, moved to Milwaukee in 1953.  The Browns almost certainly would have stayed put in St. Louis.  Lou Perini, the owner of the Braves, was exploring the option of moving to San Francisco (as well as Milwaukee) in 1953, and presumably would have moved to San Francisco, if not in 1953 then in some year thereafter.  The New York Giants seriously contemplated relocating to Minneapolis in the mid-1950’s, and with San Francisco occupied by the Braves, they would have likely moved to the Twin Cities as their attendance in New York continued to plummet.  Baseball could well have ended up with the Minneapolis Giants and the San Francisco Braves.

Given the well-documented recalcitrance of Robert Moses and Walter O’Malley, the Dodgers would have still moved to Los Angeles in 1957, but the Senators might have stayed in Washington, D. C., particularly if Minneapolis was already taken by the Giants.  Rather than move to Kansas City, the Philadelphia Athletics might simply have relocated down the road to Baltimore, where they probably would have retained the Athletics name.  By 1958, the baseball map would have been basically the same as it actually was, with a team in Minneapolis rather than Kansas City being the only difference, but there would have been some very different uniforms.   Whether the Milwaukee Cardinals would have abandoned the Brew City in 1966 for Atlanta is a question the answer to which no one will ever know.

Was the Constitution Constitutionally Adopted?

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Early in The Invisible Constitution, Professor Tribe notes that the Constitution of 1789 was ratified by a process not authorized by the previous United States Constitution, the Articles of Confederation. This point is frequently asserted, but I am not sure that it is entirely accurate.

Article 9 of the Articles of Confederation, the provision that dealt with constitutional amendments (called “alterations”), provided: “. . . nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”

On September 17, 1787, the Constitutional Convention ratified its proposed Constitution and submitted it to the Confederation Congress which was then assembled in New York. On September 28, Congress voted unanimously to transmit the proposal to the states. Although Congress did not formally endorse the proposed changes, its unanimous decision to pass the proposal along to the states arguably satisfied the “agreed to in a Congress of the United States” portion of the amendment process.

The states in turn authorized the calling of state conventions to vote on the “alterations” with the understanding that each state was to be bound by the determination of its convention. (The conventions were not a requirement of the Articles but had been specified by the seemingly “unconstitutional” Ratification Clause of the proposed Constitution.) The final requirement of Article 9 of the Articles of Confederation — confirmed by the legislatures of every state — was met on May 29, 1790, when the legislatively authorized Rhode Island ratifying convention accepted the new Constitution. (May 29, 1790, was also Patrick Henry’s 54th birthday and exactly 58 years before the admission to the union of the state of Wisconsin.)

The constitutional illegitimacy argument to which Professor Tribe refers stems from the fact that the Confederation Congress, relying upon the Ratification Clause of the proposed new constitution rather than Article 9, declared the new Constitution in force on March 4, 1789, fifteen months prior to Rhode Island’s ratification. (In fact, as of that date neither Rhode Island nor North Carolina had ratified.) In the months between March 1789 and May 1790, the United States Senate was convened, George Washington was inaugurated as the first president, and Congress adopted a long list of landmark legislation including the Judiciary and Process Acts of 1789, the first tariff, the first Naturalization Act, the Patent Act of 1790, and acts creating the departments of State, War, and the Treasury. It also drafted the Bill of Rights amendments and sent them to the states.

If the Constitution of 1789 didn’t become effective until May of 1790, then none of these actions was legitimate. Consequently, since such acts are the bedrock of American constitutionalism, the only conclusion must be that it was not necessary for the Founders to follow literally the terms of the Articles of Confederations. Not necessarily. To assume that governmental action can be legitimate only if it is authorized before it is taken is to embrace a view that is both conceptually crabbed and inconsistent with the American constitutional experience. One has only to look at the early months of the Lincoln administration to see that such a principle is not always the norm. To deal with the secession crisis, Lincoln suspended the writ of habeas corpus, ordered the arrest of Southern-sympathizers in states like Maryland, imposed a blockade on Confederate ports, and impressed the state militias into national service, all powers that under Section I of the Constitution are assigned to the legislative branch, not the executive.

However, when Congress went into session several months later in the fall of 1861, it quickly ratified Lincoln’s actions, and when the constitutionality of the president’s conduct reached the Supreme Court in The Prize Cases in 1862, the Court upheld the president’s actions, at least in part because they had been subsequently authorized by Congress.

The same logic applies in 1790. When North Carolina and Rhode Island subsequently ratified the Constitution of 1789, they also approved the actions already taken by the new Congress and established conclusively the “alterations” contained in the new constitution were legitimate. Had either state refused to ratify, then the legitimacy of the actions of the First Congress would be a valid question, but once the requirements of Article 9 were met, the issue became moot.

In other words, not just the spirit, but also the letter, of the Articles of the Confederation was followed during the transition from one constitution to the next.

Obama and Lincoln’s Bible

Posted on Categories Legal History, Political Processes & Rhetoric3 Comments on Obama and Lincoln’s Bible

Although every presidential inauguration is historically significant, some are more so than others. (Think about Coolidge’s 1925 inaugural — if you can.) President-elect Barack Obama’s upcoming inauguration is important for all the obvious reasons, yet it is intriguing to watch how skillfully he is using history to further underscore its significance while building legitimacy. Putting aside all the tripe about his “team of rivals,” Obama’s announced intent to use Lincoln’s Bible for the oath of office bespeaks how attuned he is to the use of symbols in our political (and legal) culture, particularly Lincoln’s legacy. Lincoln, too, skillfully used American history and religion to explain and to justify his actions.

Lincoln’s Bible resonates at different levels. First, it is deliciously ironic that a Democrat will make the first use of the first Republican president’s Bible since Lincoln himself in 1861. Second, the decision generated considerable press, which in turn subtly emphasizes Obama’s willingness to publicly embrace religion as part of our political discourse. Third, it poignantly ties Obama’s inauguration to the Civil War, the emancipation of the slaves, the country’s continuing struggles over race, and, of course, Lincoln himself. By using Lincoln’s Bible, Obama portrays himself as Lincoln’s heir. Lincoln’s Bible will become Obama’s Bible as well.

As an historian, I applaud Obama’s willingness to consciously craft historical memory and, most of all, his rich appreciation for symbols in American politics. Continue reading “Obama and Lincoln’s Bible”

Marquette Law School at 100: Remembering Carl Zollman

Posted on Categories Legal Education, Legal History, Legal Scholarship, Marquette Law School, Marquette Law School History, Sports & Law2 Comments on Marquette Law School at 100: Remembering Carl Zollman

Although now largely forgotten at Marquette, Carl Zollman was a prominent American legal scholar of the first half on the twentieth century who spent his entire academic career at this Law School.  Zollman is recognized as the founder of aviation law as an academic discipline, and the case can also be made that he is the founder of sports law as well.  The latter claim is obviously quite appropriate given the Marquette Law School’s current prominence in the field of sports law.

Born in Wellsville, New York, in 1879, Zollman was educated to be a minister in the Missouri Synod of the Lutheran Church.  He was ordained in 1902 and became a pastor at a small church in Williamsburg, Iowa.  In 1906, he moved to Wisconsin, where his father, also a Lutheran minister, was involved with an enterprise known as the Evangelical Lutheran Colonization Company.  For reasons that are not known, the younger Zollman resigned from the ministry later that year and enrolled in the law program at the University of Wisconsin, just a month or two shy of his twenty-seventh birthday.  He received a law degree from Wisconsin in 1909, and he joined a Madison law firm.

Over the next thirteen years Zollman moved between a variety of law and editorial positions in Madison, Chicago, and Milwaukee, all the while publishing extensively.

Although his first major article (which appeared in the 1910 Columbia Law Review) was on a topic in bankruptcy law, most of his early work was devoted to religion and law.  However, beginning in 1919, his work increasingly focused on aviation law.  In addition to a treatise, American Civil Church Law, published by Columbia University Press in 1917, Zollman placed articles in the leading law journals of that era, including the Columbia Law Review (three articles), the Illinois Law Review, the Michigan Law Review (eight articles), the Yale Law Journal (two articles), and the independent American Law Review (five articles).  As a student, Zollman had argued for the creation of a law review at the University of Wisconsin, and, when that publication finally appeared in 1921, its first volume included an article by Zollman on the law of charities in Wisconsin, another of his specialties.  During the First World War, he also served as a consultant to the United States government’s Bureau of War Trade Intelligence.

Zollman began the practice of law in Milwaukee in 1920, and his scholarly productivity caught the attention of Marquette Law School Dean Max Schoetz.  Schoetz, like Zollman, was a former student of Harry Sanger Richards, the Harvard-educated Dean of the University of Wisconsin Law Department who had brought the case method and the Harvard style of legal education to the Midwest.  Schoetz had begun law school at Madison the year before Zollman, so the two were fellow students for two years.

Schoetz had become dean of the Marquette Law School in 1916, and had been engaged in an effort to purge the school’s old reputation as a part-time urban night law school and turn it into what he styled “the most progressive law school in the Midwest.”  Schoetz was responsible for the creation of the Marquette Law Review and for the establishment of the case method as the primary form of instruction at the Law School.  To shore up the Law School’s standing with the Association of American Law Schools, with which Marquette had had a rocky relationship since it was accepted into the organization in 1912, Schoetz revoked the right of night students to earn law degrees in the late 1910’s and then terminated the night program altogether in 1924 to make sure that Marquette would be an ABA-accredited law school.  When the University authorized the appointment of full-time professorships in law in the late 1910’s and early 1920’s, two of Schoetz’s first appointments were Harvard Law School graduate John McDill Fox and Carl Zollman.

Zollman joined the faculty in January 1923 and initially taught Property, Contracts, Agency, and Bills and Notes.  His scholarly productivity only increased after he abandoned the practice of law, and over the next seventeen years, he prepared new editions of two treatises and published 32 law review articles (many, as was the custom of time, in the Marquette Law Review), 30 book reviews, two book chapters, and six books of his own (including two editions of his pathbreaking 1930 casebook on aviation law and his Aviation Law Hornbook, which for all practical purposes established the field to which they were devoted).  In 1930, the Marquette professor was chosen to preside at the First National Legislative Air Conference, which ultimately led to the adoption of the Civil Aeronautics Act of 1938.

Zollman maintained an office on the third floor of the Law School, which then contained the law library and the Grimmelsman (now Eisenberg) Reading Room.  There were no other offices on the third floor, and Zollman developed a reputation as something of a recluse who preferred to work on his research and writing rather than socialize with students and colleagues. One of Zollman’s last students was our colleague Jim Ghiardi, who had Zollman for Bills and Notes during the 1939-40 academic year.

Zollman departed from the law school somewhat abruptly near the end of that year.  Although his obituary in the Wisconsin Bar Bulletin says that he retired “to devote his time to writing law text books,” the real reasons for his decision to stop teaching are unknown.  (Jim Ghiardi recalls that the reasons were a mystery at the time, and that many students assumed that his departure was the result of a falling out with Dean Francis Swietlik, who had become dean of the Law School in 1932.)

Zollman was only 60 when he resigned from the faculty, and he had married for the first time in 1937.  Whatever his reasons for stepping down, Zollman actually published very little after 1940.  He continued to prepare annual supplements for his treatise, The Law of Banks and Banking, but he published no new law review articles or book reviews or treatises.  In September 1944, he was diagnosed with cancer, and he died in Milwaukee the following May.

As for sports law, Zollman’s final two law review articles, both of which appeared in the Marquette Law Review in 1940, were entitled “Baseball Peonage” and “Injuries From Flying Baseballs to Spectators at Ball Games.”  The first was a study of baseball labor relations which focused on the restrictive nature of Organized Baseball’s reserve system, which Zollman actually thought was reasonable, and the second was an early examination of one of the classic problems in sports law.  The two articles, particularly the first, reflect a detailed knowledge of the structure and history of professional baseball and suggest that Zollman must have been a long-time fan.  While further research is necessary to verify this claim, it appears that Zollman’s two 1940 articles were the first sports law articles (as opposed to case comments) to appear in a university-based law review, hence the claim that Carl Zollman can be counted as the “Father of Sports Law.”

Those who imagine that Marquette was just a “nuts and bolts” law school in its early decades have clearly never heard of Carl Zollman.  A nearly comprehensive bibliography of Carl Zollman’s writings, along with a short biographical sketch can be found in a recent article by Robert Jarvis of the Nova Southeastern Law School.  Prof. Jarvis is, like Zollman, a scholar of both aviation law and sports law.  The article is entitled, “Carl Zollman: Aviation Law Casebook Pioneer,” and it appears in volume 73 of the Journal of Air Law and Commerce.  Prof. Jarvis and I disagree slightly in regard to several of the details of Zollman’s career, particularly in regard to his expertise on the subject of baseball.

Marquette Law School at 100: Reconsidering the Law School’s Early Decades

Posted on Categories Legal Education, Legal History, Marquette Law School, Marquette Law School History, Speakers at Marquette1 Comment on Marquette Law School at 100: Reconsidering the Law School’s Early Decades

The Marquette University Law School came into being in 1908 when Marquette University acquired the propriety Milwaukee Law School and a recently established competitor known somewhat grandiosely as the Milwaukee University Law School. (Milwaukee University consisted only of its law school, and the school had only ten students.) These acquisitions were part of a larger project which converted Marquette from a tiny undergraduate college to a full-fledged university.

To mark the 100th anniversary of these events, the Marquette University Law School has sponsored a series of symposia this fall focusing on various aspects of the history of the Law School. The first two sessions, focusing on the Milwaukee Law School and the first quarter century of the Marquette University Law School featured the research of historians Tom Jablonsky, Joseph Ranney, and Gordon Hylton. The third, fourth, and fifth sessions featured former students from different eras of the Law School who eventually entered law teaching as a career. (These included Jim Ghiardi ’42; Frank DeGuire ’60, Jack Kircher ’63, Michael Zimmer ’67, Chuck Clausen ’70, Christine Wiseman ’72, Janine Geske ’75, Tom Hammer ’75, and Phoebe Williams ’81.) The final session, scheduled for November 18, will feature the perspectives of three faculty members who did not attend the Law School but who have been members of the faculty since the 1980’s: Judi McMullen, Dan Blinka, and Peter Rofes.

The symposium has revealed that the Marquette Law School has a rich, complicated history that is largely unknown to most of its current faculty and students. (In this regard, one suspects that Marquette is typical of most American law schools.) Moreover, the symposium has revealed that many of the frequently repeated statements about the history of the Law School — particularly in regard to its formative era — are not quite accurate.

For example, the symposium has revealed that the most important figure in the history of the Law School is almost certainly former Dean Max Schoetz (pictured above), who was dean of the Law School from 1916 to 1927.

There is little recognition of Schoetz’s accomplishments in the Law School today, and those who know about him primarily know that he was killed in a tragic street car accident on the way to the University Commencement ceremony in 1927. In fact, it was Shoetz who converted the Marquette Law School from what was essentially a traditional night law school with a day division into a modern law school. It was Schoetz who established the case method as the primary means of instruction at the Law School; it was under Schoetz’s direction that the Marquette Law Review was created; it was Schoetz who successfully defended Marquette against an effort to expel it from the Association of American Law Schools and who in fact restored Marquette to good standing in that organization; it was Schoetz who secured ABA accreditation for the Law School after it was initially denied that status; it was Schoetz who first installed a prerequisite of college attendance at the Law School; and it was Schoetz who pulled the plug on the Law School’s evening division in 1924.

Moreover, Marquette was much less “Catholic” in its early history than is commonly assumed. While there was always a Jesuit presence in the Law School in the form of the rector, a priest appointed by the president to be part of the Law School administration, none of the original faculty members of the Law School were Roman Catholics. (All were Protestants of one stripe or another.) Although Max Schoetz was Catholic, during his deanship he went out of his way to emphasize that while Marquette University was a Catholic university, the Law School was a non-denominational institution. Schoetz, for example, refused to cancel classes on the Catholic Holy Days of Obligation even though classes were cancelled on those days by other branches of the University, and he saw that these views were published in the pages of the Marquette Law Review. There is evidence that the Law School did become more Catholic in the 1930’s, particularly after the installation of Francis Xavier Swietlik as dean in 1932. Swietlik’s entire education had been provided by the Jesuits — he was a graduate of both Marquette’s college and law school — and he appears to have been somewhat less “ecumenical” than his predecessors Schoetz and Clayton Williams (Schoetz’s former law partner, who was a Quaker). However, under Swietlik, students were still admitted without regard to religion.

Finally, it is often said that Marquette provided an opportunity to attend law school for Jews, Catholics, and African-Americans who otherwise would not have been able to attend. This, it turns out, is only partly true. Milwaukee was an extraordinarily diverse city in the early twentieth century, and its foreign-born population as a percentage of the whole exceeded that of New York City. From the very beginning the Milwaukee Law School accepted anyone who applied for admission, regardless of race, gender, religion, or ethnicity (or prior education, for that matter). However, the same was true for the University of Wisconsin and most of the law schools in Chicago. Although the University of Wisconsin student body was overwhelmingly native born and members of its faculty occasionally made “anti-immigrant” remarks, there is no evidence that any student was ever denied admission to the University of Wisconsin Law School on the basis of race, religion, gender, or ethnicity. The problem for most ethnic Milwaukeeans was the cost of relocating to Madison, not the institution’s discriminatory admissions policies. The Milwaukee Law School, and later the Marquette Law School, provided an opportunity for those living in Milwaukee to study law school in a relatively inexpensive context.

Moreover, the reforms instituted by Dean Schoetz in the late 1910’s and early 1920’s that made the Law School into a mainstream academic law school actually had the effect of reducing access to law school for Milwaukeeans of limited means and in that sense made the Law School less egalitarian. While everyone had been welcome at the Milwaukee Law School as late as 1907, by the early 1920’s, the Marquette Law School was open only to those who had sufficient resources not just to have graduated from high school, but also to have attended first one year, and then two years, of college. This was true even though this pre-law school education was not a prerequisite for admission to the bar in Wisconsin. In contrast, most of the city law schools in Chicago (particularly Chicago-Kent and John Marshall) retained their open admission policies well into the 1920’s.

Podcasts of all the symposium sessions are available here.