This essay considers how the cultural authority of the constitutional Founding became legal authority in antebellum America. Examining a series of cases implicating the constitutional politics of slavery, it illustrates how legal professionals grasped the public power of constitutional origin stories. To produce meanings and legitimate rulings, lawyers and judges wrote and reproduced narratives about slavery at the Founding, converting ascriptions of original constitutional visions in formal constitutional law. This power derived from the ongoing popular construction of the Founding as a venerated and authoritative moment containing unwritten intentions, understandings, and promises binding upon subsequent generations. The essay argues that these developments belong to the deep history of originalism. By approaching originalism as a form of constitutional politics integrating public memory culture and legal reasoning, the essay locates the central public and juridical dynamics of originalism emerging in struggles over the constitutional identity of slavery.

In this article four photographs of mixed law courts (landraad) in nineteenth-century colonial Indonesia are approached as a window to study the materiality and meaning of cloth in courtrooms. The photos grant access to a careful colonial curation as well as complex Javanese hierarchies that were translated onto and through cloth, and its colors and patterns. Batik sarongs, tablecloths, head scarves, robes and gowns, coats and turbans reveal a courtroom of semiotic richness and plurality where different actors were signaling different messages to multiple audiences. This emphasis on cloth contributes to an emergent and rich discussion on the importance of objects in the study of law and empire, that has primarily focused on the materiality of paper and other objects of lawmaking. In the mixed court of the landraad, it was cloth that spoke louder than words and paper. This article emphasizes that in a mixed court the display of a plural world and jurisdictional layering, complicating the binary between direct and indirect colonial rule, was more important than a monolithic reflection of state law. Cloth was crucial to the display of this plural world and used as a way to impose, maintain, alter, insert oneself in or resist colonial rule.

Even today, the U.S. Supreme Court's decision in Terminiello v. City of Chicago (1949) strikes students of constitutional law as a vexing factual situation. The problems the case posed for the High Court are all the more daunting considering its historical context, directly following the nation's confrontation with Nazism and standing on the cusp of the Cold War against Communism. In the broader view, most observers would locate the decision within the ascendance of liberal protection for free speech rights occurring over the second half of the twentieth century. But progressive accounts should not be allowed to mask the contemporary momentousness for the justices hearing the case. Indeed, in this constitutional conflict over the speech of a rabble-rousing priest was lodged a sober question about the polity's health at that time and the preferred response to the nation's need.

During the early nineteenth century, the English East India Company (EIC) was in a state of transition in Penang, an island in the Straits of Malacca off the coast of the Malay Peninsula. Although the EIC had established strong ties with merchants based in Penang, they had failed to convince the EIC government in Bengal to invest them with more legal powers. As a result, they could not firmly extend formal jurisdiction over the region. The Anglo-Dutch Treaty (also known as the Treaty of London) that officially cemented EIC legal authority over the Straits of Malacca, was not signed until 1824, bringing the three Straits Settlements of Penang, Malacca, and Singapore under EIC rule officially in 1826. Prior to that, the EIC imposed their ideas of legitimacy on the region via other means, mainly through the co-optation of local individuals of all origins who were identified as politically and economically influential, by granting them EIC military protection, and ease of sailing under English flags. Because co-opted influential individuals could still be a threat to EIC authority in the region, EIC company officials eradicated competing loci of authority by discrediting them in courtroom trials in which they were treated as private individuals. All clients in EIC courts including royal personages in the region were treated like colonial subjects subject to English Common Law. By focusing on a series of trials involving a prominent merchant named Syed Hussain Aideed from 1816 to 1821, this article traces how EIC legal authority became pervasive at the eastern end of the Indian Ocean by the early nineteenth century without actual territorial conquest.

This article presents an analysis of the paper- and office work at two South Asian corners in the early modern Dutch empire. The article engages with current approaches to the histories of bureaucracy and empire that emphasize the lived experience of “paperwork” in order to gain a localized understanding of what constituted empire. The article focuses on the production and use of pattas, olas, and thombos in the offices of the Dutch zamindar-fiscaal in Chinsurah (Bengal) and the Dutch disāva in Jaffna (Sri Lanka). Dutch bureaucracy in these spaces was entrenched in local practices, and created through processes of layering and blending, as evidenced by material and linguistic characteristics. The deeds and registers recorded essential aspects of life such as labor, marriage, and transactions of property, and the article shows how such paperwork mattered to villagers in Chinsurah and Jaffna. The production of the deeds and registers itself could include a public spectacle, and we argue that this performative aspect of the local bureaucracy added to the perceived relevance of the paperwork. Furthermore, through an analysis of legal cases we reconstruct the use and abuse of these bureaucracies by Dutch officials and local inhabitants, which signifies a parasitical relationship that is characteristic of so many imperial and colonial spaces. Through a focus on the local bureaucratic practices, the authors shed new light on questions about the character of the Dutch empire, where things never turned out to be exactly as they appeared at first sight.

Markus Dirk Dubber has provided the readers of the Review with an erudite and fascinating essay that traces a change in modern western penal thought since the Enlightenment. What he presents is a very brave attempt to mount a left critique not only of contemporary vicious trends toward the escalation of retributive criminal penalties, but also of the therapeutic concepts of fundamental difference that have characterized rehabilitationist theories of punishment. In Dubber's view, rehabilitationism wandered from the path prepared by the Enlightenment and thereby invited barbaric reactionaries once again to dominate the field of criminal punishment. While the essay makes an important point about the blindness of rehabilitationists to the need to justify and legitimize the imposition of punishment, and while it brings to the attention of Anglo-American specialists the importance of figures from the German Aufklärung, such as Fichte, Kant, and Hegel, and rehabilitationists, such as Krause and Röder, it leaves the reader wondering about how to transcend the limits of the formalism of Enlightenment abstract identity and how to root the geistesgeschichtlich erudition of the author's idealism in the soil of social history.

Bruce Mann's irreverent schoolmate would have made a good historian. Unlike the hapless docent, the student (whatever his intent) grasped that a word's various meanings, now divided, might once have been united. The word constitution, for example, was born in obfuscation—and this ambiguity enabled it to become a powerful analytical tool in the early modern period. In fact, the political meaning of constitution derived from the word's physiological connotation, which is why the latter appears first in Professor Mann's dictionary.

Wright's article has two themes running through it: a discussion of the meaning of De Manneville and a history of custody in England from medieval times onward set against historians' theories of family development. Comment on her article then is best divided into two parts. I begin with her wide-ranging history, for here she makes an indisputable contribution to women's history that needs only notice and emphasis.

In late twentieth-century English-speaking western democracies, the petition is almost exclusively a sporadic, exceptional, and marginal mode of political expression, its legitimacy as an instrument and indicator of public opinion superceded by elected professionals and ubiquitous polls; a tenuous survival from its origin as the universal form of civic supplication. Part and parcel of the democratic revolution that reached its apogee in the nineteenth century, this transition may not have been neatly contemporaneous with the constitutional changes to which it seems collateral. In a recent article in this review, David C. Frederick posited that petitioning effectively disappeared in the United States after the imposition of a “gag-rule” by Congress, imposed in the 1830s as a response to anti-slavery agitation by petition.

The first quality the reader may have noted about these two essays is that they both deal with the question of the legal rights of marriage partners to the economic fruits of one another's labor. But inasmuch as this was only one of several issues addressed by Bruce Kercher, I see it only as an interesting coincidence. Somewhat more noteworthy is the difference between their methodologies: Golder and Kirkby's engagingly crafted socio-legal analysis beautifully illustrates the “thick description” virtues of a case study of litigation, reform agitation and legislation, while Kercher gets us well beyond Alan Atkinson's pioneering study of his subject by carefully drawing evidence unavailable to Atkinson from some of the many cases that he and his research assistants have uncovered from manuscript and newspaper records over the past several years (decisions of the Supreme Courts of New South Wales and VanDieman's Land that are steadily becoming available to us all on two websites). Needless to say, both methodologies “work.”

Over thirty years ago, Leonard Levy, building explicitly on suggestions first offered by Walter Nelles, and implicitly on observations made by Roscoe Pound, commented on the unusual conjunction of two decisions announced within weeks of each other in 1842 by Lemuel Shaw, Chief Justice of the Massachusetts Supreme Judicial Court. The cases, Farwell v. Boston & Worcester Railroad which helped create the fellow servant rule in the United States, and Commonwealth v. Hunt, which involved a prosecution for criminal conspiracy for organizing a labor union as a closed shop, seemed at odds. Hunt appeared to expand worker rights to collective action, while Farwell appeared to restrict worker rights to compensation from workplace injuries. Shaw's apparent protection of a worker's right to organize, “a pro-worker stance,” seemed to conflict with his refusal to recognize a worker's right to recover for an industrial accident in particular circumstances, “an anti-worker stance.” The question is obvious—how can these decisions be made compatible, or does their incompatibility have to be accepted with a shrug of the shoulders and a nod toward the evolutionary progress of the common law?

I am grateful to the editor of Law and History Review for the opportunity to respond to Professor Shlomo Slonim's article criticizing my interpretation of the formation of the Constitution. I know Professor Slonim personally from a visit I made over a decade ago to Hebrew University where he was a very gracious host. I know too that he is an earnest and meticulous scholar of the United States Constitution who has spent a great deal of energy refuting Charles Beard. So in this brief response I wish to treat his criticism with respect while at the same time I hope to show where I believe he is wrong or has misunderstood and misinterpreted me.

In August 1849, outspoken proslavery Missouri Supreme Court Judge James H. Birch sued Unionist Senator Thomas Hart Benton of Missouri for slander because he had publicly accused Birch of having kept “his own negro wench” and whipped his wife because she had dared to complain about it. On first impression, the lurid accusation and resulting lawsuit might seem merely colorful window dressing for the virulent sectional politics of the late antebellum period. Benton's objectionable utterances certainly exemplify the verbal pyrotechnics that, after the Mexican War, often accompanied public debate over the question of whether African-American bondage was to extend across the continental United States. But the vituperation that gave rise to Birch v. Benton, in fact, marked the beginning of one of the most widely-publicized episodes in the struggle pitting the champion of Jacksonian democracy in the trans-Mississippi Southwest against a powerful cadre of proslavery leaders who sought to end his thirty-year career in the United States Senate. According to legal historian Gerald T. Dunne, the politicized nature of the case and its contentious appeal to the Missouri Supreme Court provided the critical catalyst for lawmakers in the state to amend its constitution in 1850 to replace lifetime tenure for judges with periodic voter choice. The landmark constitutional revision both instituted popular election of judges and shook up the composition of the proslavery high court, including the removal of Judge Birch.