Legal History

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.

The Supreme Court of the United States stands at the head of the nation’s judicial system. Created in Article III of the Constitution of 1787 but obscured by the other branches of government during the first few decades of its history, the Court came into its own as a co-equal branch in the early 19th century. Its exercise of judicial review—the power that it claimed to determine the constitutionality of legislative acts—gave the Court a unique status as the final arbiter of the nation’s constitutional conflicts. From the slavery question during the antebellum era to abortion and gay rights in more recent times, the Court has decided cases brought to it by individual litigants, and in doing so has shaped American constitutional and legal development. Composed of unelected justices who serve “during good behavior,” the Court’s rise in stature has not gone uncontested. Throughout the nation’s history, Congress, the president, and organized interest groups have all attempted to influence the Court’s jurisdiction, composition, and decision making. The Court’s prominence reflects Americans’ historically paradoxical attitudes toward the judiciary: they have often been suspicious of the power of unelected judges at the same time that they have relied on independent judicial institutions to resolve their deepest disputes.

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.

Latino Americans have intersected with the law in complicated ways throughout American history. Latinos themselves are a diverse and heterogeneous 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 of Latino lawyers, activists, and ordinary people against legal discrimination and for equality. The civil rights story of Latinos bears strong resemblance to that of African Americans: 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 demonstrates 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.