A Brief American Legal History in a Nutshell (Nutshells)

A Brief American Legal History is an accessible survey of the law throughout American history, written for lawyers and law students without an historical background as well as for those interested in American history without law school training.

The book begins with the English influence on American law, then considers how law affected the split between two countries; how slavery was a bedrock economic principle by the revolutionary era; how lawyers influenced the Constitution; how the law accommodated the transportation revolution of the early 19th century; and how it failed to avoid—and perhaps exacerbated—the sectional conflict that led to the Civil War.

The book proceeds to explain how the Supreme Court enfeebled the Civil War constitutional amendments and ratified post-Reconstruction “Jim Crow” laws maintaining racial segregation not only of Blacks but also Asians. Also examined is how the conservative Court and invoked constitutional law to challenge efforts to enact wage and hour labor legislation and ratified the “special status” of women while denying them the right to vote, hold office, or enter professions. One of the features of the book is that it surveys common law developments throughout American history.

In the 20th century, the Court stopped vetoing socio-economic legislation, and the political process revolutionized labor law during the New Deal. In the 1960s, the Warren Court not only held state segregation unconstitutional, it bolstered rights to a free press, and established individual liberties in privacy, criminal procedure, and the right to vote. From the 1970s until into the 21st century, courts generally upheld the environmental law revolution, although the Roberts Court has recently erected what may be substantial obstacles, recalling the Court’s impediments to labor legislation in an earlier century.

The 21st century conservative Court constitutionalized unlimited campaign contributions, recognized individual gun possession, crippled voting rights legislation, erected new protections for religious liberty, and allowed partisan gerrymandering, to say nothing of stopping a recount in the presidential vote, thereby in effect appointing a president. And, of course, the Court’s new supermajority’s bombshell was its overruling of the right to abortion in 2022. The Court’s new reliance on a “shadow docket” has allowed it to intervene in a variety of controversies without issuing opinions, drawing criticism as a threat to democratic decisionmaking. The intersection of law and politics, a theme throughout the book, has never been more apparent.