The historian Charles Payne has described Brown v. Board of Education as “a milestone in search of something to signify.” Widely hailed as a symbol of Jim Crow's demise, the case is popularly understood to represent America at its best. For many, Brown symbolizes the end of segregation, a national condemnation of racism, a renewed commitment to the ideal of color-blind justice, or some combination of all of these, but Brown is equally affirmed in less celebratory narratives, in which it is seen to articulate a constitutional aspiration against which the injustice of current racial practices can be measured. Unlike the celebratory Brown, which indulges a fantasy of completion or accomplishment, this aspirational Brown marks “an appeal to law to make good on its promises” of equal citizenship and racial democracy, even if that promise remains as yet largely unfulfilled.

In 1858, Catharine Barr wrote to the Pension Commissioner in Washington, D.C., seeking reinstatement of her widow's pension. Barr explained that she had been married to two men who had died in the service of the United States: first to George Bundick, “a young and beloved husband” who had died in the War of 1812; then to William Davidson in 1835, who had died in 1836 of injuries sustained while serving on the USS Vandalia. She acknowledged that she was not, strictly speaking, a widow, as her current husband, James Barr, was still living and they were still married. She nevertheless sought reinstatement of the pension she had been granted as Davidson's widow. Pursuant to the terms of the relevant pension statute, Barr's pension had terminated upon her remarriage to James. However, as Barr explained to the commissioner, James “has neither been with me or given me one Dollar for my support since 1849, and I know not his whereabouts.” Having also lost her father in the War of 1812, Barr saw herself as particularly deserving of the federal government's assistance and believed that she and other widows in her position had a claim on the national coffers. “I for one,” she implored, “have no Dependence on Earth only what comes through my relations.”

The Supreme Court's decision in Lochner v. New York (1905), invalidating an act limiting working hours for bakers as a violation of contractual freedom, has come to symbolize an era in constitutional law. The period covers the years from the end of the Gilded Age through the Progressive Era. Its chief characteristic, according to its critics, is the judiciary's hostility to progressive labor legislation. Statutes intended to protect vulnerable classes from the ravages of industrialization were routinely defeated in the courts. Progressives pioneered an interpretation in which Lochner became a leading “anticanonical” case, wrongly deploying the doctrine of substantive due process to shield inherited distributions of wealth and power. The time is long past when scholars characterized the era as a product of judges' reactionary commitments to laissez-faire or, worse, to Social Darwinism, following Justice Holmes's quip, dissenting in Lochner, that “the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.” Contemporary scholars have reconstructed the period's jurisprudence, finding in it a principled commitment to a conception of justice grounded in the Founding. The most widely accepted explanation, developed by Gillman's influential study, is that substantive due process embodied a principle of neutrality requiring courts to distinguish the authentic public aims of legislation from illegitimate attempts to advantage some classes at others' expense. An alternative explanation is that judges, drawing on the theory of natural rights, developed the doctrine of substantive due process to limit government's discretion to encumber prepolitical rights to private property and liberty of contract.

The most striking feature of the Supreme Court's decision in United States v. Curtiss-Wright Export Corp. is its language asserting an independent and exclusive executive foreign affairs power. As “the sole organ of the federal government in the field of foreign relations,” the Court declared, the executive holds “very delicate, plenary and exclusive power” that “does not require as a basis for its exercise an act of Congress.” From the day the case was decided, it has stood as a preeminent authority for those who would magnify the constitutional role of the president by proclaiming the independent and unchecked nature of the executive's foreign affairs power.

National self-determination was one of the most important and controversial concepts in twentieth century international relations and law. The principle has had a remarkable history, from Woodrow Wilson's assertion that the peoples of Eastern Europe ought to form their own national states in place of ruined multiethnic and multilinguistic empires after the First World War; to decolonization after the Second World War, when populations worldwide invoked a right to throw off the yoke of imperialism; to the breakup of and war in the former Yugoslavia at century's end in precisely the same area in which a nation's self-determination was first intended to be a panacea for the region's diverse peoples. And yet, national self-determination, if not always called that, has a much longer lineage. Some note its earliest appearance in 1581, when the Dutch claimed independence from Hapsburg Spain. However, it was not until the French Revolution when, as Alfred Cobban remarks, “the nation state ceased to be a simple historical fact and became the subject of a theory,” that a people's right to determine its destiny in international as in domestic affairs was first articulated and applied. The clearest instance of this articulation and application during the Revolution was the union of Avignon and France.

In 1871, Mary Ann Harlan brought an unprecedented suit against her neighbors, Elliot and Mary Clark, before the Superior Court of Cincinnati. She alleged that they had “wrongfully and maliciously enticed away” her husband, Robert Harlan, from their home, thus depriving her of Robert's “society, protection, and support.” The common law had long given husbands the right of action to sue third parties who enticed away, harbored, alienated the affections of, or seduced their wives. In these types of marital torts, a husband sought damages for the loss of his wife's “consortium,” a term that expressed his property in her services and society. At the time of Mary Ann's suit, however, wives had no such reciprocal right. In part, this was an outcome of the common law doctrine of marital unity, or coverture, under which a wife's legal identity was merged into that of her husband upon marriage. Unable to sue or be sued, she had to be joined by him in a legal action. Courts were hardly amenable to the idea of allowing husbands to join in suits involving their own marital transgressions, where they would stand to profit from their misdeeds if any damages were awarded. More fundamentally, however, the limitation of wives' access to legal remedies was an expression of the hierarchical nature of marital unity. No less an authority than eighteenth-century English jurist William Blackstone, the most influential expositor of the common law, put the reason plainly: “the inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior; and therefore the inferior can suffer no loss or injury.” According to this theory, a wife was not barred from bringing such a suit simply because of her legal disabilities under coverture; as a subordinate in the marriage relation, she lacked any reciprocal claim to her husband's society. Mary Ann's case, then, hinged on whether she had the right to bring her suit.

On Tuesday July 4, 1854, it was hot and humid at Harmony Grove; “the heat of the weather…was extreme.” But this did not deter a large audience from gathering at this location in Framingham, Massachusetts. This was the spot upon which many of them had assembled, under the organization of the Massachusetts Anti-Slavery Society, for the past 8 years. They came by crowded railroad cars (from Boston, Milford, and Worcester), and by horse and carriage from many other surrounding towns, eager to hear speeches by prominent members of the antislavery community. William Lloyd Garrison was not the first to speak, but his actions were the most memorable. Addressing the audience, Garrison held up, and systematically burned, three documents: a copy of the 1850 Fugitive Slave Act; a copy of a recent court decision that ordered the free state of Massachusetts to use its facilities to assist in the capture of fugitive slaves; and a copy of the United States Constitution. This was no mere symbolic act; it conveyed an important part of the Garrisonian argument. Namely, that the Constitution was “a covenant with death, and an agreement with hell.”

Following the 1906 midterm elections, Indiana Senator Albert Beveridge was excited to return to Washington to introduce a bill that would prohibit child labor in the nation's factories, mines, and mills. He hoped the bill would curtail the unpopular practice and help rebrand his Republican Party as the nation's progressive party. The Party's old guard, however, proved uncooperative. Recognizing the unpopularity of child labor, they fought the bill on constitutional grounds and challenged Beveridge with a parade of horribles. If Congress could constitutionally regulate child labor, they asked, could it not also regulate the hours or wages of adults? Could it not prevent a man from joining a labor union? Or require it? One would have expected Beveridge—who opposed such regulations—to blunt that criticism with some legal distinction. Instead, he embraced it. Would Beveridge go so far as to claim that Congress could prohibit the interstate shipment of cotton picked by children, asked one Senator. “Yes,” Beveridge retorted, “or [by] a redheaded girl.”

In his book The Dignity of Legislation, Jeremy Waldron bemoans the lack of attention legal philosophers have paid to legislatures and legislation. This oversight, Waldron suggests, has impoverished our understanding of legislatures as legal institutions, and has led jurisprudes to see only the “indignity of legislation.” Legal historians have hardly been more attentive, preferring to leave legislatures to political historians and political scientists. So although we have myriad studies of roll call votes, for example, we lack a genuine understanding of the legal history of legislatures or legislation. Our failure to appreciate the role of legislatures and legislation is especially characteristic of studies of the pre-Civil War period, a period in which the state has been famously described as a “state of courts and parties,” and characterized by the legislature's “decline of authority.” Even those who have uncovered a rich governmental theory and practice in the nineteenth century have focused more on courts and statutory interpretation. Willard Hurst criticized this inattention to the legal history of legislatures years ago, noting the “tendency to identify legal history with the history of courts and court-made doctrine.” Our court-centered approach has left us with only a partial understanding of the role of law in American history. “In order to see law in its relations to the society as a whole,” Hurst continued, “one must appraise all formal and informal aspects of political organized power— observe the functions of all agencies (legislative, executive, administrative, or judicial) and take account of the interplay of such agencies with voters and nonvoters, lobbyists and interest groups, politicians and political parties. This definition overruns traditional boundaries dividing the study of law from study of political history, political science, and sociology.”

The enactment of the Statute of Westminster in 1931 represents one of the most significant events in the history of the British Empire. The very name of this historic piece of legislation, with its medieval antecedents, epitomizes a sense of enduring grandeur and dignity. The Statute of Westminster recognized significant advances in the evolution of the self-governing Dominions into fully sovereign states. The term “Dominion” was initially adopted in relation to Canada, but was extended in 1907 to refer to all self-governing colonies of white settlement that had been evolving in the direction of greater autonomy since the middle of the nineteenth century. By the early 1930s, the Dominions included Canada, Australia, New Zealand, South Africa, Newfoundland, and the Irish Free State.

“Crime is a great leveller,” stated Western Australia's The Inquirer in October 1853. “Policy requires that we should convince the native population that in our Courts of Justice they really are what we profess and tell them they are—the equals of the white man, whatever they may be elsewhere.” The Inquirer was responding to a case that had just come before Perth's Quarter Sessions, in which John Jones was tried for the murder of Neader in the colony's southwest. Jones was found guilty of manslaughter and sentenced to transportation for life. Given that Australia's colonies were notable for their failure to bring settlers to trial for violence against Aboriginal people, it is significant that The Inquirer's editor did not regard Jones' conviction and sentence as a sign that the Courts of Justice were working as they professed to do. The charge was one of wilful murder, and the evidence indicated that “if ever a foul and deliberate murder was committed, it was on the occasion which led to this trial.” The verdict that Jones was guilty only of manslaughter, he continued, was indicative of the jury's disregard of the law's impartiality when a white man was on trial for the murder of an Aboriginal man. If the law was to make a distinction between white and black, “let it be declared: but to say there is none, and to act as if there were, is a mockery.”

In 1824, the American schooner Fox sailed into Charleston harbor with seasoned mariner and Rhode Island native Amos Daley on board. When officials boarded the ship, they interrogated the captain and crew before cuffing Daley and hauling him off to the Charleston jail, where he remained until the Fox was set to leave harbor. Daley's detainment occurred because 16 months earlier the South Carolina General Assembly had enacted a statute barring the entrance of all free people of color into the state. Unlike other antebellum state statutes limiting black immigration, this law extended further, stretching to include in its prohibition maritime laborers aboard temporarily docked, commercial vessels. This particular section of the law was passed on the assumption that such sailors inspired slave insurrection and thereby posed a direct threat to the safety and welfare of the citizenry. Over the course of the next four decades, the states of North Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas would join South Carolina in passing statutes, commonly referred to as the “Seamen Acts,” which limited the ingress of free black mariners. Amos Daley was only one of ~10,000 sailors directly affected by these particularly Southern regulations.

Like revolutionaries throughout the modern world, Americans built a new, stable legal order on property confiscated from their enemies. Early in the American War for Independence, colonial governments collapsed, British courts closed, and ordinary people took the law into their own hands. They created committees that enforced harsh, revolutionary justice. But remarkably, by the end of the War, they were able to develop the stable legal institutions of new governments.

The mid-1960s witnessed a landmark change in the area of civil rights policy in the United States. After a series of tortuous internal battles, with Southern legislators using all available procedural tools to maintain their states' discriminatory Jim Crow legal systems, the United States Congress adopted two statutes—the Civil Rights Act of 1964 and the Voting Rights Act of 1965—which insured civil and political equality for all Americans. The Acts of 1964 and 1965 were the culmination of a decade-long struggle by black Americans to secure the citizenship rights that had been denied to them for more than a half century. Beginning with the Brown v. Board of Education (1954) Supreme Court decision, the civil rights movement built momentum, as formal organizations like the National Association for the Advancement of Colored People (NAACP) grew in strength and informal (grass roots) organizations spread throughout the South and the Nation. As national public opinion shifted increasingly toward providing new civil rights guarantees for blacks, Congress responded with new legislation: the Civil Rights Act of 1957 (the first civil rights law since 1875), the Civil Rights Act of 1960, and a legislative proposal to prohibit the poll tax in 1962 (which would be ratified by three-quarters of the states in 1964 and become the 24th Amendment to the United States Constitution).

Statelessness continues to trouble today's international legal and political spheres. Despite the International Convention Relating to the Status of Stateless Persons, the stateless remain an unwelcome presence and awkward anomaly within an international human rights regime still fundamentally dominated by the nation state structure. In 1945, Marc Vishniak wrote that the stateless were “… restricted in their rights more than any other people and constitute the weakest chain in the link of human rights.” Hannah Arendt, who was herself a Jewish refugee from Germany, placed the enigma of the stateless in an even more central philosophical position. Whereas Visniak emphasized the problematic and marginalized legal status of the stateless within the dominant international paradigm, Arendt proposed a re-imagining of the international legal order, a vision that would prioritize a solution to the situation of the stateless, especially stateless Jews, by “somehow or other restoring to them the inalienable rights of man.” For Arendt, Jewish former citizens of Germany, stripped of their nationality by the Nazi regime, occupied a newly paradoxical situation as empowered and voluntary Heimatlos, precisely because they now rejected the standard legal normativity of the state/citizen template. Arendt found historical support for her argument about statelessness as both abnormal within dominant international legal thinking, and at the same time strangely empowering, with regard to the situation of the mainly Jewish refugees displaced during World War I. They had fallen outside the protections offered by new succession countries at the end of that conflict, very often by their own decision to refuse incorporation as citizens of the emergent nation states. These Jewish apatrides discovered “privileges and juridical advantages in statelessness.” For Arendt, Jewish former citizens of Germany at the end of World War II further embodied a move toward conceptualizing a new international paradigm wherein rights could be sought beyond the traditional bounds of a state-based legal order, precisely because those bounds had been irrevocably shattered by the state itself.

MH, a domestic cook who was 26 years of age, was charged with murdering her newborn infant in September 1931. MH had been “seeing a boy” who, she stated, “took advantage” of her on one occasion, procuring her consent to sexual intercourse by a promise of marriage. She claimed that she only realized she was pregnant during the later months of her pregnancy, but did not inform the father of her child. Her employer, suspecting that MH was pregnant, enquired on several occasions whether she could do anything to help, but MH did not admit her “condition.” Although her employer was aware that MH had no family or home to go to, she gave MH notice to quit her job. A couple of weeks later, MH gave birth in her bedroom at her employer's home; she did not call out for assistance or disturb the girl with whom she shared the bedroom. MH admitted in her statement that the baby cried after birth and that she “tied a white dress belt … around its neck to kill it,” adding: “I tied it [the belt] tight. I killed the child and I know I killed it.” Afterwards, MH put the body in a suitcase, cleaned up the bloodstains, and returned to work. The suspicions of her employer eventually lead to the discovery of the dead infant. The postmortem examination showed that the infant had been born alive, but had received no attention at birth; death was the result of strangulation. MH was acquitted of murder at the Central Criminal Court.