ADVANCE ARTICLES: American Journal of Legal History

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Letter Writing and Legal Consciousness during World War I (Elisabeth A. Hoffmann)

DOI 10.1093/ajlh/njae003
Abstract:

This article explores how ordinary Americans thought about law during World War I by examining 119 letters to Congress regarding charges under the Espionage Act. These letters are a product of their time and shed new light on our understanding of the first Red Scare. This lens of legal consciousness explains how people remain within established modes of engagement, rather than either withdrawing or becoming violent, as is found in the extant literature. Despite opposing goals, the letter writers’ shared master frame enabled them to ‘speak to’ the other side, rather than ‘past’ those with opposing views. This article explains how individuals who opposed and supported seating Berger rallied under the same master frame of Americanism. Yet, the two groups displayed strikingly different legal consciousness. These disparate groups not only conceptualized the law itself differently, but engaged the law as a tool for different agendas. At a time when violence was on the rise, these people eschewed violent means and maintained the most conventional, peaceful means of protest: letter writing. How they managed this was by embracing the law as their key, nonviolent tool.

A Turbid River of History and Law: The Procurement of Women in Imperial Japan and Colonial Korea (Marie Seong-Hak Kim)
DOI 10.1093/ajlh/njae006
Abstract:

Japanese military brothels during the Pacific War, known as comfort stations, and the predicaments of women confined there still reverberate in public memory. Of late a growing number of scholars have called for approaching the comfort women issue from a broader historical context, linking it to Japan’s prewar state-regulated prostitution, later transplanted into its colonies, and human trafficking. This article discusses the legal frameworks of indentured contracts and criminal prosecution surrounding the procurement of women in imperial Japan and colonial Korea. Most women entered prostitution impressed by poverty when the law fully recognized their agency as independent contractors. The age-old machinery of advanced loan agreements, signed or guaranteed in many cases by destitute parents, revealed how the ill-guided idea of filial piety muddled the boundaries between the exercise of legal rights and their abuses. The judicial process dealing with prostitution contracts and also the crimes of abduction and kidnapping helps understand how law and state institutions operated in the Japanese colonial empire. The recent historiographical debate on the comfort women raises critical questions about the conditions under which the past is assessed.

The Pennsylvania Council of Censors and the Debate on the Guardian of the Constitution in the Early United States (Angus Harwood Brown) [OPEN ACCESS]
DOI 10.1093/ajlh/njae004
Abstract:

In 1776, Pennsylvania established an institution called the Council of Censors, which would be elected every seven years and was tasked with ensuring that the legislative, executive, and judicial branches of government had remained faithful to the constitution. None of the other thirteen colonies would create a similar institution, although Vermont would in 1777. Nor has the Council of Censors enjoyed a positive reputation among historians or constitutional scholars: Gordon Wood, for example, has attacked the institution as ‘a monster [pulled] out of Roman history’. Contemporaries agreed, and the body was abolished in Pennsylvania in 1790 after years of vociferous opposition and was criticized extensively at the Federal Convention in 1787. But the Council of Censors was a remarkably innovative institution, the first designed to enforce a written constitution, created decades before the Supreme Court’s assumption of the power of constitutional judicial review in 1803. This article presents a new history of the origins of the Council of Censors and its reception both in Pennsylvania and across the United States. It challenges prevailing accounts of the origins and purpose of the Council of Censors and argues that it was a product of a new theory of constitutionalism as the codification of popular sovereignty which emerged in the United States in the 1770s in response to the colonists’ fears about legislative overreach. Prior to the nineteenth century, it was only in Pennsylvania that this resulted in the creation of institutions to secure the supremacy of constitutional law over ordinary legislative power. As the final section of this article demonstrates, the idea that the constitution could be enforced against the legislative branch by an independent constitutional guardian—including the Supreme Court—was rejected at the Federal Convention precisely because of its framers’ antipathy to Pennsylvania’s radically democratic constitution.

Alexander Hamilton's Constitutional Jurisprudence and the Bank Bill (Peter Charles Hoffer)
DOI 10.1093/ajlh/njae002
Abstract:

Alexander Hamilton's view of law was more than pragmatic. Forward looking, and innovative, it saw law as a creative tool. Often misread, and dismissed, as mere policy preference, it was in fact sophisticated and superbly articulated jurisprudence. In the years between the ratification debate and the proposal for the First Bank of the United States, Hamilton displayed this jurisprudence to great effect.

Book reviews

•  Christian G Fritz, Monitoring American Federalism: The History of State Legislative Resistance (DOI 10.1093/ajlh/njae007)

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