Abstract: The book chapters that I provide offer a new way of understanding how the U.S. Constitution reconciles effective and energetic executive power with accountability and transparency. Through what I call the "substantive accountability framework," the Constitution provides for presidential power that is energetic but politically and legally contained through a number of mechanisms. For example, while the President has a unique capacity to operate in secret, that capacity must remain confined within legislatively defined contours, including legislative oversight mechanisms, and by the ever-present possibility of leaks from within. In addition to offering an affirmative vision in its own right, the substantive accountability framework is a needed corrective to "presidentialist" schools of thought, including those that deem the President constitutionally empowered to circumvent information-sharing and other statutory requirements or to override first amendment protections by wielding the classification stamp. The substantive accountabiliity framework -- and the case against presidentialism -- follow from textual, structural, and historically based analyses. While history is not the only factor, it -- and an understanding of its potential uses and abuses in constitutional interpretation -- play important roles in these analyses.

Abstract: On September 6, 1901 President William McKinley was shot in the chest and abdomen by anarchist Leon Czolgosz at the Pan-American Exhibition in Buffalo, New York and died from his wounds eight days later. Newspapers throughout the country wanted to know about the assassin, who was immediately seized by the crowd following the shooting at Buffalo and quickly incarcerated. Out of the many details that the press learned about his life, one stood out the most: that he was a "rabid anarchist." This scene set the stage for a popular, political, and legal culture premised upon defending the American nation from the specter of anarchy. Anarchy came to represent the antithesis of social, political, and legal order and the anarchist appeared as a direct threat to the nation. In response, national leaders turned to security policy and law in order to combat the perceived threat of enemy anarchists and their chaotic potential, increasing the breadth and scope of state bureaucracies. A culture of war erupted during a time of peace, rationalizing a state-building process premised upon national security policy and law. The law, and more specifically laws built around the policing, excluding, and censoring of the American populace, became the paradigm of social and political order at the turn of the twentieth century—the reverberations of which can still be felt today.

Note: Thursday, Oct. 25, 4:00 p.m., Room 25, Mondale Hall. This is the Fifth Annual Lecture in the Erickson Legal History Lecture Series. We recommend coming early for seating.

Abstract: Opponents of marriage rights for couples of the same sex assert that "marriage" has always meant the same thing since time immemorial. But history shows that marriage in the United States – a civil institution regulated by the individual states – has been altered repeatedly by courts and legislatures, responding to changes in family lives and work roles. What are the stakes in making a historical case for marriage rights for same-sex couples? "Marriage in the Courts" addresses that question based on Professor Cott's experience testifying and writing declarations, amicus briefs, and expert reports in marriage equality lawsuits in several states and constitutional cases in the federal courts, including Perry v. Schwarzenegger in California and several cases arguing the unconstitutionality of the 1996 Defense of Marriage Act.

Abstract: In his 1914 annual report to the Department of Labor on behalf of the Bureau of Immigration's southern border district, Supervising Immigrant Inspector Frank W. Berkshire declared that the influx of refugees into the United States as a result of hostilities along the U.S.-Mexico border was "one of the most difficult problems" his office had faced that year. At the time that Berkshire observed this "problem" along the border, the United States had no policy regulating refugee admissions: the United States would not enact such a law – the Displaced Persons Act – until after World War II prompted the forced statelessness of millions of Europeans. Immigration officials thus struggled to handle the sudden arrival of refugees seeking shelter from the Mexican Revolution, instituting an ad hoc, improvised legal response to refugee migration. By utilizing subject correspondence files of the Immigration and Naturalization Service, this paper seeks to address the following questions: Who was considered a "refugee" and permitted asylum in the US? In what ways were Mexican refugees subject to exclusionary immigration laws? How did Bureau of Immigration employees operating along the US-Mexico border interpret "refugee" as a legal category when it had not yet been incorporated into any legislative purview?

Abstract: Scholarship on Mexican workers and the American workplace during World War II has examined how state-labor, and US-Mexico, relations shaped the Mexican-American civil rights movement. While the issues of racial discrimination and inequality in the American workplace have been examined extensively, the role of business in affecting the meanings of health and health rights for Mexican workers has yet to be explored. This dissertation chapter examines the central role of American railroad companies in supervising Mexican railroad workers' labor productivity and health on a daily basis, and in defining the meanings of health and injury during the railroad bracero program (contact-labor program co-sponsored by the Mexican and US governments). The railroad guest worker program obligated individual railroad companies to provide Mexican workers with the same sanitary living conditions, safe working conditions, medical care and compensation rights that it provided to American workers. This enabled individual railroad companies to determine the health and injury rights of Mexican workers through their own medical and legal regimes. I argue that railroads defined health and ability based on their own interests acquire and maintain a stable labor force at a minimal cost. As railroad management governed workers and minimized risk in the workplace, they encountered resistance from the US public health service and the War Manpower Commission, who both played a role in determining Mexican workers' admissibility to the US based on the requirements of US immigration law. It was through these moments of contest that the tension between business, state and individual interests in regulating health and health rights became visible.

Abstract: On August 12, 1949 after four months of arduous negotiations, the states gathered in Geneva signed a set of international legal norms regulating their conduct during war. Perhaps the most revolutionary among them was Common Article 3 to the four Conventions, which constituted the first internationally binding treaty rule governing "conflicts not of an international character" such as civil wars. To be sure, this was a historical watershed. But why would states ever agree to this type of regulation? Their core prerogative, after all, is to defend their sovereignty, understood at its barest as the legitimate monopoly of violence within their territory. That they would willfully choose to limit their means of action while also promising to extend humanitarian consideration to their challengers, potentially enhancing and legitimating their cause, is a puzzling phenomenon that begs investigation. The purpose of this paper is to trace and explain the political process that led to Common Article 3, drawing on extensive primary and secondary research.

Abstract: This paper draws on court records, legal treatises, legislation, and government commission reports to compare the common law handling of workplace injuries with the later statutory workmen's compensation system. Historian David A. Moss has argued that workmen's compensation was a milestone in U.S. government intervention in the economy for the purposes of risk allocation. It is important to note, however that the common law system of handling workplace injuries was also a form of government allocation of risk. I argue that these two systems of risk allocation, legal and statutory, embodied different conceptions of work and safety. Each system differently drew the lines between costs of production and those uncompensated social costs which economists call negative externalities. The common law of workplace injury tended to assume work was basically safe to competent workers, with the result that many injuries went uncompensated, but damage awards in workers' successful lawsuits made injured workers' pain into a cost of production for which employers had to pay. Workmen's compensation laws in the early 20th century, guaranteed all workers some payment for workplace injuries, but the pain and suffering that injured workers experienced was rendered nonmonetizable. The risks of pain which accompanied injuries would be carried entirely and without compensation by working people.

The Ronald A. and Kristine S. Erickson Distinguished Lecture in Legal History

Sarah Barringer Gordon, Arlin M Adams Professor of Constitutional Law and Professor of History, University of Pennsylvania

"The Spirit of the Law: Religion and the Constitution in Modern America"

A new constitutional world burst into American life in the mid-twentieth century. For the first time, the national constitution's religion clauses were extended by the United States Supreme Court to all state and local governments. As energized religious individuals and groups probed the new boundaries between religion and government and claimed their sacred rights in court, a complex and evolving landscape of religion and law emerged. Passionate believers turned to the law and the courts to facilitate a dazzling diversity of spiritual practice. Legal decisions revealed the exquisite difficulty of gauging where religion ends and government begins. Controversies over school prayer, public funding, religion in prison, and same-sex marriage roiled long-standing assumptions about religion in public life.

* This lecture is held in Room 50.

Tamar Herzog, Professor of Latin American and Spanish History, Stanford University, "Defining Empires: Spain and Portugal in the Americas (17th-18th century)."
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* NOTE: This lecture will be held in Room 262.

Danny LaChance, 2008 Erickson Graduate Fellow, Program in Law and History/PhD candidate, American Studies, University of Minnesota

"State of Confusion: Social Engineering, Vigilante Distrust, and Capital Punishment in the Contemporary United States."
Room 471 (Mondale Hall)