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Posts Tagged ‘Legal history

“I’ll believe corporations are people when Texas executes one”*…


Louisiana Senator Huey Long announcing his presidential candidacy to members of the press in 1935

Since the Supreme Court’s Citizens United decision, the reality that corporations in the U.S. are afforded the same rights as individuals (even if they do not have the same responsibilities) has been on the minds of many.  But corporate personhood has a much longer history.  It began to take shape in that late 19th century when one of the drafters of the 14th Amendment convinced that courts that the Amendment is not limited to natural persons.

Then, as Adam Winkler explains, the “endowment” of corporations caught fire in the 1930s– perhaps ironically, when newspaper publishers had to sue a politician to protect freedom of the press…

When the Supreme Court first began to breathe life into the First Amendment in the early twentieth century, the speakers who inspired the newfound protections were politically persecuted minorities: socialists, anarchists, radicals, and labor agitators. Today, however, in the aftermath of the 2010 Supreme Court ruling in Citizens United v. Federal Election Commission, which held that corporations have the same right as individuals to influence elections, the First Amendment is used by wealthy and powerful business interests seeking to overturn food-labeling laws, securities disclosure laws, and campaign finance regulations. Yet the seeds of this transformation were planted decades ago in a different Supreme Court case—though one eerily evocative of the Trump era—involving a blustery, dough-faced politician who railed against “fake news.”

Huey Long was Trump before Trump. The fiery populist governor elected on the eve of the Great Depression had an aggressive agenda to make Louisiana great again—and little tolerance for dissent. Long set up a state board to censor newsreels and another to decide which newspapers would be allowed to print profitable government notices. When the student paper at Louisiana State University published an unflattering editorial about him, an outraged Long—referring to himself, as autocrats often do, in the third person—sent in the state police to seize copies, saying he wasn’t “going to stand for any students criticizing Huey Long.”

After Louisiana’s larger daily newspapers came out against him, “the Kingfish” declared war. “The daily newspapers have been against every progressive step in the state,” Long said, “and the only way for the people of Louisiana to get ahead is to stomp them flat.” To do so, in 1934 Long’s allies enacted a 2 percent tax on the advertising revenue of the state’s largest-circulation newspapers. Long said the tax “should be called a tax on lying, two cents per lie.”

Led by the Capital City Press, the publisher of the Baton Rouge Morning Advocate, the newspaper companies challenged the advertising tax in court. They claimed the tax was an effort to silence those who questioned Long’s policies. Long had said as much, promising he was “going to help these newspapers by hitting them in their pocketbooks. Maybe then they’ll try to clean up.” As an editorial in the Morning Advocate warned, if the government can impose special taxes on newspapers that oppose the party in power then “the guarantee of a free press, written in the Constitution of the United States, is at an end.”

One problem for the newspaper companies, however, was that they were newspaper companies. They were corporations, and it was not at all clear that for-profit business corporations had free speech rights. Indeed, the prevailing law was on Long’s side…

The fascinating story in full at: “How ‘the Kingfish’ Turned Corporations into People” (excerpted from Winkler’s new book).

See also: “How Corporate America Won Its Civil Rights” and “‘Corporations Are People’ Is Built on an Incredible 19th-Century Lie.”

* Robert Reich


As we contemplate unintended consequences, we might recall that it was on this date in 1818 that Mary Shelley’s epoch-making tale of a man-made monster, Frankenstein, was published.  Shelley had begun writing the story two years earlier, when she was 18 and on vacation near Geneva with her husband (the poet Percy) and their friend Lord Byron.  The house party set itself the task of each writing a gothic story; only Mary finished hers.  The first edition was published anonymously; Shelley was first publicly identified as the author on the title page of the 1823 second edition.

The work has, as Brian Aldiss argues, a strong claim to being the first true science fiction novel.  As the sub-title– “The Modern Prometheus”– suggests (and like all great sci fi), it treats the philosophical, cultural, and psychological ramifications of scientific and technological progress.



“Whatever we may think or affect to think of the present age, we cannot get out of it”*…


John Stuart Mill, the most influential English-speaking philosopher of the nineteenth century, is today best remembered as the author of On Liberty…  in which he argues, relentlessly and over the course of around 50,000 words, that there should be no interference with the thought, speech, or action of any individual except on the grounds of the prevention of harm to others.  That prohibition applies to legislative or state action, but also to those informal modes of coercion that can be practised by society itself. And the ban is total. “Over himself, over his own body and mind, the individual is sovereign.” Though occasionally challenged by the collectivist left, the position Mill argues for has become orthodoxy in modern Anglo-American political thought.

But while liberalism itself remains pre-eminent, Mill’s arguments for that position have fallen out of sight in recent discussions. In contrast to many contemporary thinkers, Mill’s defence of liberal principles is historical and local – not abstract and universal…

Part of a wonderful series in the Times Literary Supplement, Footnotes to Plato— an appreciation of the relevance of Mill’s thought in our time: “John Stuart Mill: higher happiness.”

* John Stuart Mill, “The Spirit of the Age, I


As we get in touch with our inner Utilitarian, we might recall that it was on this date in 1859 that the “temporary insanity” defense was first successfully deployed in the U.S., when it was used as a plea by U.S. Congressman Daniel Sickles of New York in his trial for the shooting of his wife’s lover, Philip Barton Key— for which Sickles was acquitted, though he’d been witnessed executing his rival and had confessed.  Sickles went on to serve as Sheriff in New York in 1890.

 source (and larger image)


“Round round get around, I get around”*…


Distribution of early Byzantine items and contemporary imitations found outside of the boundaries of the mid-sixth-century empire, along with a depiction of the empire during the reign of Justinian (c. 565 AD)

Dr Caitlin Green details the finds that demonstrate the extraordinary trading reach of the Byzantine Empire: “A very long way from home: early Byzantine finds at the far ends of the world.”

* The Beach Boys


As we remind ourselves that trade has been global for a long, long time, we might recall that it was on this date in 614 (though some sources suggest that it was yesterday’s date; and others, that it was in 615) that Chlothar II, the Merovingian king of the Franks, promulgated the last of the Merovingian capitularia, a series of legal ordinances governing church and realm– the Edict of Paris (Edictum Chlotacharii).

About 70 years earlier, Byzantine emperor Justinian had earned renown for his rewriting of Roman law, yielding the Corpus Juris Civilis (still the basis of civil law in many modern states).  Chlothar II’s accomplishment was in that same spirit– a sort of Frankish Magna Carta that defended the rights of the Frankish nobles against the claims of the Crown (though less democratically, it also excluded Jews from civil employment throughout the Frankish kingdom).

Chlothar II’s official signature



Written by LW

October 19, 2017 at 1:01 am

Time Capsule…


Isotype, the visual language pioneered by Austrian sociologist, philosopher and curator Otto Neurath and his wife Marie in the 1930s, shaped modern infographics and visual storytelling.

America and Britain: Three Volumes in One, also known as Only an Ocean Between, is a wonderful 1946 out-of-print book by P. Sargant Florence and Lella Secor Florence from the golden age of ISOTYPE, kindly digitized by Michael Stoll, presenting a series of minimalist infographics that compare and contrast various aspects of life in Britain and the United States…

As a time-capsule of cultural change and technological progress, the infographics put present-day numbers in perspective, especially in the domains of telecommunication, media, and resource usage.

Read more at Brain Pickings; and see more of the extraordinary graphics (in the size of one’s choice) at Michael Stoll’s Flickr stream.


As we contemplate our “cousins,” we might send judicious birthday greetings to James Delancey; he was born on this date in 1703.  A Cambridge-educated English aristocrat, Delancey migrated to the American colonies, settling in Manhattan, where he was appointed Chief Justice by Royal Governor William Cosby.

The times were tense:  Eighteenth century American colonists were demanding increased freedom and democracy; many colonial New Yorkers were individualistic entrepreneurs seeking financial success and independence, unwilling quietly to defer to what they viewed as antiquated claims of royal privilege.  Proponents of royal rule– including Delancey and Cosby– desperately sought to maintain power in the face of that growing opposition.

Peter Zenger’s New York Weekly Journal, a paper regularly critical of royal privilege, published articles in the early 1730s exposing Governor Cosby’s unjust policies, backroom financial deals, and bullying tactics.  A furious Cosby condemned the Journal, had copies of the paper publicly burned, and– to widespread public outrage– imprisoned Zenger for eight months while he awaited trial for seditious libel.

At the trial in 1735– presided over by a decidedly-hostile Delancey– Zenger’s lawyer, Andrew Hamilton (like Zenger a former indentured servant turned successful businessman), aimed his defense at the jury rather than the judge, hoping that a public fearful of royal abuses would condemn Cosby and protect Zenger.  Hamilton conceded that Zenger had published articles critical of Cosby but eloquently argued that because the articles contained truths in the form of statements of verifiable facts, they could not be libelous.  The jury’s “not guilty” verdict generated spontaneous cheers from the gallery… More importantly the verdict, which created the precedent that truth is a defense against charges of libel, laid the foundation for American press freedom.

As Founding Father Gouverneur Morris said, “The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America.”

(More on the trial, its protagonists, and its impact here.)

The burning of Zenger’s New York Weekly Journal (Bettman Archive)




It was a frame-up…


As political discourse in the U.S. has devolved into the nastiest kind of spitting match– dramatic thesis, passionate antithesis, no synthesis– antagonists on all sides of every issue invoke the Constitution, its Framers, and their intent… which, it seems, can be understood to justify just about any position.

So The Browser‘s recent “Five Books” interview with Jack Rakove on the U.S. Constitution couldn’t be more timely– nor more helpful.  As he explains his selection of the five books he’d most recommend to anyone wanting to understand the context for, the drafting of, the process of ratification of, and the ultimate role of “the oldest written constitution still in use,” the Pulitzer-Prize-winning Stanford historian sheds light in every direction, e.g., on the role of the Judiciary…

Most historians are very skeptical about the way that the Supreme Court is [interpreting the Constitution]. To reason accurately about the past is much trickier than one might think. The current version of originalism is what’s called “public meaning originalism.” It says we don’t really care about the history of how these provisions got adopted, we’re not going to try to reconstruct the debates to figure out what the framers wanted and what the ratifiers thought. We just want to get at the holistic meaning of the language. To historians this is a terribly flawed enterprise, but that’s the current regime… Language is dynamic. As the work of many historians, including my own work, attests, the 18th century was a period of political experimentation. The framers were rethinking the nature of representative government, they were rethinking the nature of executive power, they were coming up with new rules for judges. All this required a terrific amount of creative political thinking. The idea that language was fixed when all these ideas were being stretched and pressed in different directions, the idea that the meaning of a text is frozen at the moment of its adoption, it just strikes most historians as inane.

You’ve said that historians should call the bluff of people who twist the history of the Constitution for instrumental purposes. Please call someone’s bluff.
I submitted a brief in the District of Columbia vs Heller case, from three years ago. That was the case in which the Court struck down a 32-year-old handgun ban as incompatible with the Second Amendment. I think there are intellectual embarrassments of the first order in Justice Scalia’s opinion. He wholly ignores the history of how the Second Amendment got adopted. He makes things up that did not happen the way he hypothesizes. But I’m a historian and he’s a Justice. I’m a private citizen and he’s a public official. I think I have better footnotes, but he has a vote on the Supreme Court.

Read the entire fascinating interview (and order any/all of the books Rakove recommends) here.

As we muse that things could always be– indeed, once were– even worse, we might recall that it was at dawn on this date in 1804 that Alexander Hamilton and Aaron Burr met on a rise in Weehawken (NJ) to resolve their differences with a duel.  The rivals fired essentially simultaneously;  Hamilton’s shot was wide, but Burr’s hit its mark.  Hamilton died the following day.  While there was a good bit of personal animus between the enemies, their feud was fueled by deep political divisions. It’s proximate cause: Republican Burr’s feeling maligned by Federalist Hamilton.  But the bloody encounter was just one symptom of the deep animosity loosed by the first emergence of the nation’s political party system.


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