For this discussion, see Brandwein (1999, 96–131).
Socio-legal scholar Kim Scheppele (1989, 2094–97) has taken up the question, when does a story
begin? She discusses how the boundaries of legal narratives are shaped by “legal habits.” The traditional
legal habit is to look (narrowly) to when “the trouble” began, i.e., the set of events that gave rise to the legal
question at hand. A wider angle of vision, however, is possible.
To understand the meaning of the Reconstruction debates, for example, we must understand the
speeches “intertextually.” This means tracing the use of terms that appear in the speeches. Terms gain their
meaning from their place within an extensive network, and in order to understand these terms, we must fully
trace the entire network. Thus, by tracing wider patterns in the use of Civil War references, the meaning of
these references can be inferred. The goal, it should be emphasized, is not “to perform the impossible task of
getting inside the heads of long-dead thinkers.” Rather, the goal is “to grasp their concepts, to follow their
distinctions, to recover their beliefs and, so far as possible, to see things their way” (Skinner 2002, 3). This
methodological emphasis on tracing the use of terms flows from the basic recognition that texts belonging to
the history of legal discourse were public acts of communication and argumentation. Usage had to be con-
ventional for communication to take place.
Adamson v. California, 332 U.S. 46 (1947).
See the discussion of Fairman’s history as an institutional resource for Warren Court dissenters in
Brandwein (1999, 97, 155–84).
For an extended discussion of how originalist debate over the Slaughter-House Cases obscures cer-
tain questions and normative visions, see Brandwein (2004 [reviewing Ross’s (2003) argument that the
Court’s non-incorporationist view was meant to block the new and rising power of economic conserva-
tism]). For a discussion of overlapping frames in another context, see Brandwein (1996, 293, 328–30).
Civil Rights Cases, 109 U.S. 3 (1883).
See Shelley v. Kraemer, 334 U.S. 1 (1948); Burton v. Wilmington Parking Authority, 365 U.S. 715,
721 (1961).
U.S. Const., amend. XIV sec. 5, “The Congress shall have power to enforce, by appropriate legisla-
tion, the provisions of this article.”
United States v. Reese, 92 U.S. 214 (1876); United States v. Cruikshank, 92 U.S. 542 (1876); United
States v. Harris, 106 U.S. 629 (1883); Civil Rights Cases, 109 U.S. 3 (1883).
The Warren Court minimized the practical impact of state action doctrine, permitting Congress to
reach private conduct under the Commerce Clause. See Heart of Atlanta Motel, 379 U.S. 241 (1964) and
Katzenbach v. McClung, 379 U.S. 294 (1964). The Court soon added the Thirteenth Amendment as an
additional source of federal power to regulate private action. See Jones v. Alfred H. Mayer Co., 392 U.S. 409
(1968).
Today, it is accepted by jurists and scholars that the Bill of Rights is applied to the states through the
due process clause of the Fourteenth Amendment (not the privileges or immunities clause). When Crosskey
wrote, the application of the Bill of Rights to the states, through any means, was still disputed.
During the Second Reconstruction, historians delegitimated Dunning School histories of Recon-
struction, which cast Reconstruction as a mistake and presented the white redeemers of the South as heroes.
Progressive histories of Reconstruction, which presented Republicans as corrupt rulers interested only in
economic hegemony, were also delegitimated. For a summary of the history of Reconstruction historiogra-
phy, see Foner (1986).
Indeed, this cross-institutional dynamic between the legal academy and academic history is most
easily observable in citation patterns. It can also be observed in conference participation, the number of law
professors trained in both law and history, and law school subscriptions to academic history journals.
City of Boerne v. Flores, 521 U.S. 507 (1997); Kimel v. Florida Board of Regents, 528 U.S. 62
(2000); United States v. Morrison, 529 U.S. 598 (2000); Board of Regents v. Garrett, 528 U.S. 62 (2000).
Cf. Nevada Dep’t of Human Resources v. Hibbs, 123 S. Ct. 1972 (2003) and Tennessee v. Lane, No. 02-1667
(2004), which show that the Court is willing to support certain civil rights legislation on narrow grounds.
