Legal History

This is an advance summary of a forthcoming article in the Oxford Research Encyclopedia of American History. Please check back later for the full article.

On August 4, 1942, the Mexican and U.S. governments launched the bi-national guest worker program, most commonly known as the Bracero Program. An estimated five million Mexican men between the ages of 19 and 45 separated from their families for three-to-nine-month contract cycles at a time, in anticipation of earning the prevailing U.S. wage this program had promised them. They labored in U.S. agriculture, railroad construction, and forestry, with hardly any employment protections or rights in place to support themselves and the families they had left behind in Mexico. The inhumane configuration and implementation of this program prevented most of these men and their families from meeting such goals. Instead, the labor exploitation and alienation that characterized this guest worker program and their program participation paved the way for, at best, fragile family relationships. This program lasted twenty-two years and grew in its expanse, despite its negative consequences, Mexican men and their families could not afford to settle for being unemployed in Mexico, nor could they pass up U.S. employment opportunities of any sort. The Mexican and U.S. governments’ persistently negligent management of the Bracero Program, coupled with their conveniently selective acknowledgement of the severity of the plight of Mexican women and men, consistently cornered Mexican men and their families to shoulder the full extent of the Bracero Program’s exploitative conditions and terms.

United States law recognizes American Indian tribes as distinct political bodies with powers of self-government. Their status as sovereign entities predates the formation of the United States and they are enumerated in the U.S. Constitution as among the subjects (along with foreign nations and the several states) with whom Congress may engage in formal relations. And yet, despite this long-standing recognition, federal Indian law remains curiously ambivalent, even conflicted, about the legal and political status of Indian tribes within the U.S. constitutional structure. On the one hand, tribes are recognized as sovereign bodies with powers of self-government within their lands. On the other, long-standing precedents of the Supreme Court maintain that Congress possesses plenary power over Indian tribes, with authority to modify or even eliminate their powers of self-government. These two propositions are in tension with one another and are at the root of the challenges faced by political leaders and academics alike in trying to understand and accommodate the tribal rights to self-government. The body of laws that make up the field of federal Indian law include select provisions of the U.S. Constitution (notably the so-called Indian Commerce Clause), treaties between the United States and various Indian tribes, congressional statutes, executive orders, regulations, and a complex and rich body of court decisions dating back to the nation’s formative years. The noted legal scholar Felix Cohen brought much-needed coherence and order to this legal landscape in the 1940s when he led a team of scholars within the Office of the Solicitor in the Department of the Interior to produce a handbook on federal Indian law. The revised edition of Cohen’s Handbook of Federal Indian Law is still regarded as the seminal treatise in the field. Critically, however, this rich body of law only hints at the real story in federal Indian law. The laws themselves serve as historical and moral markers in the ongoing clash between indigenous and nonindigenous societies and cultures still seeking to establish systems of peaceful coexistence in shared territories. It is a story about the limits of legal pluralism and the willingness of a dominant society and nation to acknowledge and honor its promises to the first inhabitants and first sovereigns.

Federalism refers to the constitutional and political structure of the United States of America, according to which political power is divided among multiple levels of government: the national level of government (also referred to as the “federal” or “general” government) and that of the states. It is a multilayered system of government that reserves some powers to component entities while also establishing an overarching level of government with a specified domain of authority. The structures of federalism are set forth in the Constitution of the United States, although some related ideas and practices predated the founding period and others have developed since. The balance between federal and state power has shifted throughout U.S. history, with assertions of broad national power meeting challenges from supporters of states’ rights and state sovereignty. Federalism is a fundamental value of the American political system, and it has been a controversial political and legal question since the founding period.

In its formulation of foreign policy, the United States takes account of many priorities and factors, including national security concerns, economic interests, and alliance relationships. An additional factor with significance that has risen and fallen over time is human rights, or more specifically violations of human rights. The extent to which the United States should consider such abuses or seek to moderate them has been and continues to be the subject of considerable debate.

This is an advance summary of a forthcoming article in the Oxford Research Encyclopedia of American History. Please check back later for the full article.

Latino Americans and the law have intersected in complex ways throughout American history. Latinos themselves are a diverse and multifarious racial, ethnic, and cultural group, with members hailing from all parts of the Spanish-speaking world and representing all variations on the spectrum of race. Each group has a unique origin story, but all have been shaped by law and legal process. Legal historians and legal scholars explore the role of law in incorporating Latino groups in American society, the effects of law on Latino communities, and the struggles against legal discrimination and for equality. The civil rights story bears strong resemblance to that of African Americans and the law: in each case, members have been subjected to de jure and de facto discrimination and social subordination. But the Latino civil rights story has unique valences, particularly in the areas of language discrimination and immigration law and policy. Latino legal history explores the complex ways that Latinos interact with the color line in American law and politics.

Decided by the Supreme Court in 1973, Roe v. Wade legalized abortion across the United States. The 7-2 decision came at the end of a decades-long struggle to reform—and later repeal—abortion laws. Although all of the justices understood that Roe addressed a profoundly important question, none of them imagined that it would later become a flashpoint of American politics or shape those politics for decades to come.

Holding that the right to privacy covered a woman’s choice to terminate her pregnancy, Roe and its companion case, Doe v. Bolton, struck down many of the abortion regulations on the books. The lead-up to and aftermath of Roe tell a story not only of a single Supreme Court decision but also of the historical shifts that the decision shaped and reflected: the emergence of a movement for women’s liberation, the rise of grassroots conservatism, political party realignment, controversy about the welfare state, changes to the family structure, and the politicization of science. It is a messy and complicated story that evolved parallel to different ideas about the decision itself. In later decades, Roe arguably became the best-known opinion issued by the Supreme Court, a symbol of an ever-changing set of beliefs about family, health care, and the role of the judiciary in American democracy.

The 1925 Scopes trial was a widely followed court case in Dayton, Tennessee, that attracted the attention of the nation. A prosecution against a schoolteacher charged with violating Tennessee’s new law prohibiting the teaching of human evolution, the trial became a great public spectacle that saw debates over the meaning and truth of the Bible, and the relationship between science and religion. The trial is most famous for the involvement of the lawyers William Jennings Bryan (for the prosecution) and Clarence Darrow (for the defense).

Despite being a legally insignificant case, the trial has remained important in American history because it is seen as symbolizing some of the country’s great social issues in the early 20th century: fundamentalist responses to modernity, the autonomy and clout of the “New South,” and the eternal clash between religion and science.

Separation of church and state has long been viewed as a cornerstone of American democracy. At the same time, the concept has remained highly controversial in the popular culture and law. Much of the debate over the application and meaning of the phrase focuses on its historical antecedents. This article briefly examines the historical origins of the concept and its subsequent evolutions in the nineteenth century.

In 1911, a group of American Indian intellectuals organized what would become known as the Society of American Indians, or SAI. SAI members convened in annual meetings between 1911 and 1923, and for much of that period the Society’s executive offices were a hub for political advocacy, lobbying Congress and the Office of Indian Affairs (OIA), publishing a journal, offering legal assistance to Native individuals and tribes, and maintaining an impressively voluminous correspondence across the country with American Indians, “Friends of the Indian” reformers, political allies, and staunch critics. Notable Native activists, clergy, entertainers, professionals, speakers, and writers—as well as Native representatives from on- and off-reservation communities—were active in the Society. They worked tirelessly to meet daunting, unrealistic expectations, principally to deliver a unified voice of Indian “public opinion” and to pursue controversial political goals without appearing too radical, especially obtaining U.S. citizenship for Indian individuals and allowing Indian nations to access the U.S. Court of Claims. They maintained their myriad activities with scant financial resources solely through the unpaid labor of dedicated Native volunteers. By 1923, the challenges exhausted the Society’s substantial human and miniscule financial capital. The Native “soul of unity” demanded by non-white spectators and hoped for by SAI leaders could no longer hold the center, and the SAI dissolved. Their work was not in vain, but citizenship and the ability to file claims materialized in circumscribed forms. In 1924 Congress passed the Indian Citizenship Act, granting birthright citizenship to American Indians, but citizenship for Indians was deemed compatible with continued wardship status. In 1946 Congress established an Indian Claims Commission, not a court, and successful claims could only result in monetary compensation, not regained lands.

From the 1890s to World War I, progressive reformers in the United States called upon their local, state, and federal governments to revitalize American democracy and address the most harmful social consequences of industrialization. The emergence of an increasingly powerful administrative state, which intervened on behalf of the public welfare in the economy and society, generated significant levels of conflict. Some of the opposition came from conservative business interests, who denounced state labor laws and other market regulations as meddlesome interferences with liberty of contract. But the historical record of the Progressive Era also reveals a broad undercurrent of resistance from ordinary Americans, who fought for personal liberty against the growth of police power in such areas as public health administration and the regulation of radical speech. Their struggles in the streets, statehouses, and courtrooms of the United States in the early 20th century shaped the legal culture of the period and revealed the contested meaning of individual liberty in a new social age.