History Politics and Law with Charles McCurdy – Conversations with History
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History Politics and Law with Charles McCurdy – Conversations with History

– [Narrator] This program is presented by University of California Television. Like what you learn? Visit our website, or follow
us on Facebook and Twitter to keep up with the latest UCTV programs. – Welcome to a Conversation with History. I’m Harry Kreisler of the Institute of International Studies. Our guest today is Charles McCurdy, who is professor of history and law at the University of Virginia. He is the 2014 Jefferson
Lecturer at UC Berkeley. Professor McCurdy, welcome to Berkeley. – Glad to be here. – Welcome back to Berkeley, I should say. Where were you born and raised? – I was born and raised in Pasadena. My father was a machinist. My mother was just around the household. I was really the first person in my family to get a bachelor’s degree, go to college. – Looking back, how do
you think your parents shaped your thinking about the world? – I don’t think they shaped
my thinking about the world so much as they instilled in
all of us a drive, some drive. They were very hard working people. – And was there discussion
around the dinner table or in the family about world affairs, or about law, and society, and so on? – No, it was mostly about baseball. (laughter) – Well, that’s a good way to prepare for understanding politics. What about at school? Any teachers before
you went off to college that really impacted your thinking? – None that really stand out looking back. They were all good. They were solid. I went to public schools in Pasadena and they were quite good. – So where did you do
your undergraduate work? – At UC San Diego, which was a brand new undergraduate college them. It’s now 27,500, but when I went there there were only 2,000
undergraduates there. – And as an undergraduate
is that where you decided to become a historian and lawyer? – Well, it took a while,
but by the time I graduated I was at least thinking
seriously about doing history. – And any teachers,
professors, that stand out when you look back now, sort of influencing your perspectives? – The teacher I remember
best for me in undergraduate was Herbert Marcuse, who was
in the philosophy department, and taught a course called
theories of society. It was a very challenging course. It broadened my view of most everything. I think I probably worked
harder in that class than I had ever worked in
an academic endeavor before. And I enjoyed doing it. – Is that where you first got a sense of kind of the interface of
politics, society, and law, or did that come later? – Politics and society, but no law. Law came really much later. I think if you had asked
me when I was a sophomore, “What do you want to major in,” I would have said political science. But there was no political
science department at UC San Diego. And in fact I transferred to UCLA in 1967 and they said, “Well, you
have to come to summer school, “and we’ll admit you for the fall term, “and you can major in political science.” I went to UCLA that summer and I hated it. It’s just too big. So I went back. There was a new guy on the
faculty, a recent PhD from Yale, John Blum’s student,
named Michael Parrish. We bonded then. We’re
still good buddies today. He directed my undergraduate thesis. Really got me interested in history. He’s the second most influential undergraduate teacher I had. – And then you went on to do graduate work and get your degree at San Diego also. – That was really
something of an accident. I graduated in 1970,
and in February of 1970 was the very first lottery for
the draft for conscription. And I got a very high number. I just assumed after I graduated I would be going to Vietnam. I got this high ping pong ball number. And I had fallen in love
with a freshman at UCSD. So I applied to graduate
school just kind of on a lark so I could hang around, I
could play intermural football, play intermural basketball,
romance my girl. And it turned out I really
was pretty good at it. So I did another year. And that’s when Harry Scheiber
came to UCSD from Dartmouth. And Parrish said, “Go to Harry.” That’s when my capacity to do law and history really took off. – And Harry Scheiber, I should
mention, is here at Berkeley and a professor of history and law at Berkeley’s law school. What then did you do your dissertation on? – I wrote about a chap
named Stephen Field. Harry had run into one of his opinions called the Chicago lakefront case. Illinois Central Railroad
against Illinois. This was a case where the city of Chicago granted, to the Illinois Central Railroad, the whole harbor of Chicago, and then tried to get it back. And current standards of
constitutional law at that time said once you give it,
once you make a grant, you can’t reclaim it. And they went to an
opinion of John Marshal in the early part of the 19th century. And Field had carved out an exception known as the public trust doctrine that a Berkeley professor
named Joseph Sacks, who just recently died, he used that same case to
create a public trust doctrine in modern environmental law. This was around 1970, ’71. And I went back and read that opinion not through the eyes of Joseph Sacks but through the eyes of Stephen Field and figured out that what
he was really trying to do was across a whole wide array of doctrinal categories
in constitutional law to draw really strict
and immutable boundaries between the public sector
and the private sector. And so this was a
private sector overreach, and it was the public sector doing… The city of Chicago doing something it had no business doing. – That is giving away… – Giving away something
that belonged to the people generally, the harbor of Chicago. At common law, lakes, and
oceans, private owners, you usually can only own to
the ordinary high water mark. And then the rest of that resource belongs to the public generally. And here was the city of Chicago saying, we don’t care about the
inhabitants of Chicago. We’re giving it to this
very wealthy corporation. – And this was surprising
to see Field do this because he was generally
perceived as a conservative. – Well he was a conservative, but he was a much more
systematic conservative than people had led on. The conventional wisdom,
in the historiography, and in the political science literature, was that basically he carried the sword for the railroad companies. And he fought off any interference
with their activities. And here was an example
that ran counter that. And if you read enough opinions, which is what I did that semester, you could get a whole new perspective. So that article made a big splash. I was a very fortunately young guy. The Organization of American
Historians actually gives a prize to the best essay by
a graduate student nationally. And that essay won that and opened doors for me that might otherwise have never opened. – So in this work, what
was it that was your task to really go in systematically and look at all of his opinions and really see them for what they were. How important was biographical
information about him, the political context, and so on? – Well, those two things were important but the most important thing was to recover the conceptual framework with which Field looked at these issues. And by doing that, by reconstructing his conceptual framework you could get a perspective
on any one case, or a bunch of cases, or indeed, lots of bunches of cases that you couldn’t get before. Basically it was an exercise
in intellectual history in its relationship to
political and legal history. – In the political way
of looking at Field, he was typecast in such a way that you wouldn’t get
a sense of the fullness of his thinking about the law. – That’s correct. – After San Diego, did
you then start teaching? How did you pursue your studies? – At the end of three years
you take qualifying exams. And so I took those and passed. Now I just have to write a dissertation. And I applied for a fellowship from the Russell Sage Foundation and was very fortunate to get it. It sent me to the Yale
law school for two years. And in the first year there I learned to walk and talk, be a lawyer. I took all the first year classes. Property, and civil procedure,
torts, and contracts. And I worked on my dissertation. And then in the second
year I taught a course in collaboration with a
regular faculty member who is sort of supervising me as I taught. And then finished my dissertation. And then I was in the job market and got a job at the
University of Virginia. And I’ve been there almost four years. – What did Yale contribute to broaden your sense of where the law stood in relation to society and politics? – I’m not sure that it
changed my perspective on where law stood relative
to society and politics. But I was pretty good at society, and I was pretty good at politics, and I was pretty good at history. And then I became a pretty good lawyer. So that I could do interdisciplinary work in such a way that lawyers
could nod their heads at, this is pretty good stuff, and historians could nod their heads, this is pretty good stuff. That was, I would say, the secret of whatever success I’ve
had as a legal historian really ever since. – What year did you go to Virginia? And then what was it
like there at that time? – I went in the fall of 1975. The University of Virginia had just desegregated five years earlier. The first women were admitted as undergraduates five years earlier. It was about 35% female and no more than 2% African American when I started teaching
in the college there. The faculty, in history and in government, there was not a political
science department, but government. There was a guy in government
named Henry Abraham, who they lured away from Pennsylvania. In the history department
was William Harbaugh, Merrill Peterson, Robert Cross, people who had been big shots in the trade from places like Brandeis, and Columbia, and Connecticut is where
Harbaugh came from. And they were terrific. And they were such warm senior people. They really wanted the best for the young people they recruited. And they helped me grow a great deal. I loved Virginia from the outset. – And was civil rights issue still, was there still turmoil at
the campus at that time? It was an acceptance of
the changing university in the context of the
civil rights revolution. – I’d say even in town you could sense that the mores weren’t all that different in Charlottesville than what
they had been in New Haven, or in San Diego. It didn’t feel like a southern town. Now, it wasn’t a diverse
place, like Berkeley, in 1975. Although it has evolved to
be like that 40 years later. – I like to ask my guests about
the skills and temperament of what it is you do as a legal historian in case students are watching the program. What do you see as the requisite
skills for a historian, first a historian, and
then a legal historian. – Well, the most important
thing for a historian, whatever they’re doing,
history of science, history of the presidency, is curiosity and imagination. Asking new questions about old stuff. But in order to get to
answers to those questions which are gonna be
persuasive to other people you need some skills. So you can’t do the history of science unless you know something about science. You can’t do the history of law unless you know something about the law. Curiosity and imagination get
you started, the training, in the skills you need
to do what you want to do to come up with the right kinds of answers to the questions you’re inclined to pose is really a never ending process. – What about temperament? – You’ve got to be patient. Doing history takes a
long time to do well. We always argue with deans and stuff that historians are
different than physicists. We don’t do four papers a year. We do a big book every 10 years because that’s what it
takes to do it right. So it does take patience. A lot of times it means
using scraps of paper from archives that are hardly legible. So figuring out what they say and then figuring out how you can use them to say something new about your subject. – Virginia for you was a unique place, or became a unique place,
in the sense that there was collaboration with history
department and the law school. I noticed on your vita that
you’ve really supervised an extraordinary number
of DCs and dissertations, many of them with law
students, many with historians. – When I came, my main job
was to be the coordinator of something that was called the joint program in legal history which had been established
before I got there. And this joint program
enabled history departments– history students in the PhD program to take law school courses for credit toward their PhD up to four, of fourteen, maybe. And it enabled law students
to earn a masters degree on the same day they would
earn their law degree without any summer courses,
just working really hard. My job was to coordinate that. It turned out it was kind of
like managing a baseball team. There were a lot of moving parts and the idea was to get
everybody working hard and keep riding each of those students. It’s been a terrific program. Of my 30 PhDs, 26 are
teaching in law schools now. And a great number of the JDMAs are also teaching in law schools. They’re not finding jobs
in history departments, but they’re finding jobs
teaching legal history, and whatever it is they know really well. Tax, or torts, or whatever
it is they know really well. – And how would you
characterize the benefits for a law student or a lawyer to have a historical perspective? – Well, there are really two. One is just curiosity about where all the stuff they’ve learned comes from and why it evolved the way it evolved. When the big shake ups came, why did they come when they came? They’re all fascinated to learn that. But much more importantly is that lawyers, legal scholars have written
about the past forever. The program we have at
Virginia enables young people to do a piece of scholarship before they begin their
professional career. And if they’re really good at it they may decide they want to be a scholar rather than a prosecutor or somebody who advises Wall Street. – Your major book is on anti-rent era in New York law and politics. How long did it take
you to write that book, before we talk about it? What was your goal there? – Well my goal was to… The basic storyline is a bunch of farmers in the Hudson Valley, their land tenure was unlike anybody’s land tenure in American history. They owed so many days of
work per year to the landlord. If they sold the family
farm they had to give a quarter of the purchase
price to the landlord. If they didn’t pay their rent the landlord could come and distrain, take and sell, a sheriff’s sale, without any further process, their livestock, growing crops, valuable stuff out of the barn. So these were quasi-feudal
leased land tenures in New York. And these guys, the
farmers went on strike. They declared their
independence from the landlord. And everybody who addressed the practicalities of the situation said, well, the farmers’ argument is persuasive. The problem is that there was very difficult to come
up with a legal means of extinguishing the landlord’s interest in the tenant’s land. The rent strike lasted 26 years. That’s why it took so
long to recover the story in all of its dimensions. And everybody lost. The tenants lost, the landlords lost because they spent more money
defending their interests than their interests
turned out to be worth. And a lot of political
careers were shattered. Some pretty prominent
lawyers looked pretty silly over this period of time. So it’s a story about how law and– legal ideas and political ideas interacted to generate a result that nobody liked. I thought that was a fascinating story. – And the years we’re talking
about is 1839 to 1865. You clearly saw a problem
which needed a solution with everybody having the expectation that the problem would solve. And then by the end it wasn’t
solved. It just disappeared. – Everybody just said, “This is the best we can do. Move on.” – How did you research that problem? Because this is a long enough period that there were always different reasons for why there was no resolution. – Well, the resolution
was gonna have to come from the New York state legislature which had annual sessions
which lasted generally from January until May of each year. I took the big question
and broke it down to, well, what happened in the 1840 session? What ideas materialized? What movements toward each solution in each session of the legislature, what legal problems,
constitutional problems, did they pose? Who emphasized those constitutional
problems or deficiencies in the means that had been discovered that created doubt about the
capacity of the legislature to pass such a statute
incorporating those means. And then you had to recreate
the political context, the political ideas of the majority in the state legislature,
and of the governor, who asked the legislature
to act on this problem. All of those were factors. So basically the story
evolves almost year by year. – And this is all about solving
this particular problem. – All about solving
this particular problem. But that particular problem
was intersected with what to do about slavery, what to do about the regulation of banks, what to do about state spending
for canals and railroads. Because the same sort of political ideas, the same sorts of political ideas and legal ideas generated
in those issue areas also played a role in the issue area about landlord and tenant. – And there were very
prominent politicians involved in this. During this part, at
least part of the period, Seward was the governor of New York. – At the very outset of the story Seward is governor of New York. And of course he’s Abraham Lincoln’s chief competition for
the presidency in 1860. And then Andrew Johnson’s
secretary of state. Silas Wright was regarded as the most important democrat in the country and a very close friend of
Martin Van Buren in the 1840s. So yes, some pretty big names. – In the end, there’s no resolution. And as you studied this landscape, clearly what emerged for you was a sense of the logic of the
lawyers and of the legal system and the logic of the politicians
in the political systems. And the interface between them often leads to stalemate, or stasis. It’s almost like the stars
have to be in perfect alignment before you can get the
politicians and the lawyers agreed on a particular solution, to a particular policy problem, at a particular moment in time. – Give me other examples of what would confront the politicians as they tried to resolve this and thought they were gonna resolve it. – Well, in 1846 the governor of New York is Silas Wright, a democrat. He’s got a big democratic majority in both chambers of the
New York legislature. He has some ideas for
how to solve the problem, and he works those into his annual message to the legislature. One house of the legislature
goes to work on the problems. Meanwhile the other
house of the legislature, it’s the New York senate, is working on the problem
of the state printer. At that time the democrats
were divided into two relatively identifiable factions known as the barn burners and the hunkers, conservatives and radicals. And they have such a huge
fight over the state printing that the conservative democrats end up working with the
Whigs to subvert the solution that Silas Wright, the governor, has provided for the
anti-rent difficulties. They do this so they
can destroy his capacity to run successfully for governor in 1846. And that’s the way it works out. – And so the problem on
the table is not solved because there’s another
problem that leads to a fight so you can’t build the coalition. – That’s right. And the problem on the table, nobody disputes the validity, or the utility, of the
solution on the table. It’s just that the
enactment of that solution, at that moment in time, was gonna serve the political
interests of Silas Wright and the majority of the
senate wants to destroy him. – The logic of politics
is a story of personality, of timing, of other agendas. – And also loyalty, party loyalty, or loyalty to factions
within a particular party. – Hypothetically, is this
a problem that another political system in another state could have solved more easily? Or would your argument
be no, this is politics. – Well, this is politics in America. I think James Madison
wanted to make it hard for people to be able to do
things in American public life. And I think it still is. We can all think of moments where all kinds of things
got done very fast. 1933 or 1937 for example. But Roosevelt had just huge majorities in the senate and the house. We had an external situation
that everybody agreed was absolutely awful,
the Great Depression. Under those circumstances, overcoming some of those other bonds that make American
politics such a difficult, and its connect with the law, so difficult to achieve things, were sort of set aside in the 1930s. So, how did we do on getting
a solution to slavery? Not very good. We had the Civil War. – Now what about the
logic of the legal system? It obviously plays into the logic you just described in
the political system. How are the lawyers different in their contribution to the
stalemate of this problem? – [Professor McCurdy] How is
their contribution different than the politicians? – How do they bring to
the table roadblocks that are different from
those of the politicians? – Well, because they
are very interested in constitutional limitations
on what governments can do. So article one, section 10 of the Constitution of the United States says no state shall pass any law impairing the obligation of contracts. If the legislature just wanted to say, New York legislature just wanted to say, all those old agreements
between landlord and tenant are void, unenforceable, that would be, everybody
agreed, unconstitutional. See, there had to be other ways that you could massage that
constitutional language in order to find ways to get around it. You could use the tax power. You could use the power to regulate what one person could pass to his heirs in the next generation. You could act on the remedies that the landlords had
against defaulting tenants. One solution was simply to
expropriate the landlords, paying them just compensation, to use the imminent domain power to take their reserved interest
in the tenant farm. These are all kinds of
ideas that people put forth. Some of them were more
congruent with the attitudes of one political party
than with the other. But the lawyers’ task,
if that’s the right word, was to formulate the legal
barriers or obstacles for doing what everybody wanted to do and then to try to come up with solutions that were congruent with the
public philosophy of the party. And that’s really what the
story, my story, is about. – You mentioned one of
the founding fathers. And I’m curious, is this problem embedded in an American political culture that really lays a foundation that says, well, we don’t want to move too quickly, and we may not want government to do anything in this regard? – Maybe better not to have it do anything than to have it do too
much of the wrong thing. But yes, the separation of power is to… Madison said let’s have
ambition check ambition. He was thinking of
departments of government, legislative, executive, judiciary. But ambition checks ambition also between rival political parties. He wanted, as he said in Federalist 51, it’s great to have a division of power between the national
government and the states because that too can act as a mechanism to check constructive activity which may tyrannize over minorities. And really, the whole
way the republic works, he said in Federalist 10. But taking in a wider
variety of interests, the interests themselves
will check one another and make it more difficult for a majority to find common ground. And certainly all three of
those things that he forecast as good things for our republic in 1788 were present in New York public life between 1839 and 1865. – How did this problem
disappear, or did it? – People just said, we’ve done all we can, and the controversy is over. – And so now if somebody buys a property which has this clause in it
that they owe rent to somebody, or have to present a pig to somebody, is that still on the books? – That’s still on the books except all the pigs have been monetized. And the days of work have been monetized. The old quarter sale requirements where if you sold your property you had to pay 25% to the landlord, that was abolished by judicial decision in New York in 1853. Which then it opened another
door of possible attack by the anti-rent forces. And so that’s a whole chapter on how they attempt to say
even the rent is unlawful. So, today people do buy property in Albany and Rensselaer counties in
particular in New York state. And they owe a perpetual annual rent. It’s pretty nominal today. Today it’s probably $40 a year. $40 a year was a lot more money in 1839 than it is in 2014. – Now it’s interesting because this is, in a way, a state/local problem. But in bringing the microscope to it you’re actually giving us a sense of what happens on the national stage. When I was looking at your
book what came to mind was the financial crisis of 2008 where there was so much difficulty in getting any kind of movement that would respond to the crisis. Is that a leap I shouldn’t make, that a historian would
tell me no, don’t do that? – This historian would say national politics and
national public policy are inextricably linked to state, in part because the activities of political parties at the state level set the range of possibilities
open to that same party, or parties, at the national level. But more important, national politics shape state politics in
a wide variety of ways. For example, there was a major depression began in this country in 1839. And one of the questions was,
well, what do we do about it? And what the Whigs wanted to do was a big flow of money
from the national government to the several state governments. Which would enable them, the Whigs, William Henry Seward and his friends, to use that money to
expropriate the landlords and pay off the tenants. They thought they had
this thing figured out and their president, who they
had elected, Harrison, dies, and the vice president
vetoes all the Whig plans for generating a huge
amount of federal spending that would be dispersed
through the several states. – You gave a talk and paper on a classic article
written by Herbert Wechsler proposing a theory that
in a way consolidated– the article was written in 1954– the New Deal vision of
the role of government. – Especially the role of the Supreme Court and a certain kind of controversy, whether or not the Supreme
Court should ever intervene, should declare unconstitutional
an act of congress in order to protect the
autonomy of the several states. That was the question that he asked. And he came up with a general theory as to why congresses’ choices should never be interfered with by the Supreme Court. – The point I would like
to draw out of you is part of the role of lawyers in the national political process requires a foundation in theories of law that draw on existing theories
but modify them to support or define the work of
one branch or another of the government. Talk a little about that. I don’t know, where was this
article published by Wechsler? – Columbia Law Review, 1954. – And it’s seminal, right?
– Yes. – It’s seminal because in other words it draws on bodies of law to
frame a new understanding… – That was congruent with
the understanding already, no theoretical foundation. There was a general understanding among people in the New Deal coalition that the Supreme Court
should not say no to congress in situations involving the
protection of states’ rights. That the states could protect themselves. – To do this there is a defining of the role of the federal
government vis a vis the states. I think the term he used was interstitial meaning that what the congress is doing, because it’s so shaped by the states and who’s in the congress, becomes a way of saying, well, therefore don’t interfere with
what the congress is doing, telling the Supreme Court. – That’s right. This interstitial concept for Wechsler was important for still another reason. And that is, the claim was that every
time congress acts, whether it’s on interstate
highways or healthcare, they act against the
backdrop of state law. And they tend to act only interstitially. That is, only building on the deficiencies that exist within state law. Therefore the states and state law provide a major foundation
for congressional reasoning, whether you’re a republican or a democrat. What the states have previously
done serves as a backdrop for determining what to do now. This, argued Wechsler, creates… It means that the burden of persuasion to do something more than
is done in the states is always cast upon the
congress of the United States. In other words he was
a very Madisonian guy, saying that the system is
rigged to make it very difficult for the congress of the
United States to legislate. And when they do, that’s
the reason the Supreme Court should defer to their
definitions of purpose and legitimacy in adjudicating
constitutional controversies in which the rights of states
as states are involved. – As a historian you are
looking at the Wechsler argument and really demonstrating the processes that the legal system requires in order to consolidate a
political revolution, really. This is consolidating
the New Deal revolution and then it is drawn on by the courts as it furthers the civil rights
revolution that comes later. – Right. So the lecture I gave in
2011 on the Wechsler thesis, what I tried to do is
reconstruct the origins of this idea of the states as serving as the political safeguards, the political safeguards of federalism. And I found a realist strand, or functionalist strand,
to New Deal thought, a political process theory
strand of New Deal thought, and an originalist strand
of New Deal thought, and showed how Wechsler
fused those three strands into a new bundle that was
tighter and more persuasive than had existed before. And that’s the reason it had served as really the touchstone
of the Supreme Court’s federalism decisions from
1954 really until the ’70s, when some people began to question whether Wechsler had been right, or even if he had been right, whether the conditions
of the American polity had changed enough in the interim such that the way
Wechsler thought about it should be challenged. So my premise in that paper
was that the Wechsler thesis, the argument that there are political safeguards of federalism which makes a judicial safeguard
of federalism unnecessary. That thesis could be used as a lens for looking at currents of
political and legal thought about federalism from the New
Deal really to the present. – Is this sort of reminiscent
of your original work on Field in the sense that you
really have to dig in either to court decisions or
to legal theorists’ writings as through time they’re
grappling with a broader theory so you can’t dismiss a
piece of what they’ve done without seeing the big picture? So this is really giving us insight into what courts, lawyers,
and legal theorists do. – I hope so. The work on Wechsler, and the lecture I’m gonna
read today here in Berkeley, are all, in method, traceable to my initial
work on Stephen Field in that I try to take the
constellation of ideas at work at a particular moment in time serious enough to see how
each of the several elements of thought intersected with the others to create a fairly coherent body. And then to see how that
coherent body works over time. – Now the thrust of
what Wechsler was doing was to legitimate– I’m saying this as a political scientist. – He was definitely doing legitimacy. (laughter) – The nationalization
and the centralization that were implicit in the New Deal and then the civil rights movement which followed Wechsler’s arguments. Did you… – I was gonna modify that
claim a little bit to say yes, he was legitimating
the centralization that flowed from acts of congress. But the same time he was very interested in also legitimating a
Supreme Court decision called Erie Railroad in
which Louis Brandeis, speaking for the court,
had preserved the autonomy of the states over the common law. And he was trying to do both in a way that reinforced
his bigger project which was to say that judicial
review of acts of congress has no place except to
protect individual rights, never to protect states’ rights. – In the article you point out that something is bubbling
up from the grassroots that suggests a swing of
the pendulum the other way, that even as this doctrine
is put on the table, this legal theory,
there is dissatisfaction which one is finding in
the political system. And we happen to be doing this interview on the day when the Supreme Court has yesterday reached the verdict in McCutcheon versus the
federal election board. This is clearly the pendulum swinging in the other direction. So my question is, part of what a historian contributes is an understanding of
the swing of the pendulum. – And also the seeds
that started the pendulum in that arc in the very first place. – So what the challenge becomes is a more conservative Supreme Court today on Obamacare, on rules for
campaigns, and on other matters, is trying to come up with a rationale that builds on that seed and then moves the pendulum
in the other direction. – That’s right. – And the job of the legal historian is to analyze how well a job they’re doing. – Not so much analyze how
well a job they’re doing but to ask the questions
why are they doing what they are doing now. And a presupposition is that
the seeds of what they’re doing and why they’re doing it now were begun, germinated, and organized into fairly
coherent bodies of thought at some earlier date. So the historian’s first question is why and when did that
certain array of ideas begin to coalesce in a form
that we see recognizable in the opinions written by
certain justices, say, in 2014. And then there’s another question which is what generates
the motion of the pendulum. What political, social,
intellectual forces were at work that allowed those ideas
not just to germinate but to flower. – In the lecture you’re
gonna give later today, and this will not be
broadcast for several weeks so we’re not taking
away from your audience, you look at the sedition acts
passed by the federalists and the response of the republicans, the Jeffersonians, to that act. And again here is a case where
to pass the sedition acts, and we should say what they were. The federalists looked to legal theory to justify what they were doing. – Absolutely, yeah. They said the First Amendment, which says that congress shall not abridge the freedom of the press. They said their statute didn’t abridge it. Which meant that they had to define freedom of the press
differently than we do. But that shouldn’t be
surprising that they would. That was the 18th century, after all. And so they defined it on
the basis of the common law. And the common law had
authorized abridgements of freedom of the press of all sorts so long as, this is what free
press meant at common law, there was no censorship
of what was published. They also had an argument about, well, why could congress pass a
law regulating the press. There’s nothing in the constitution that gives congress the
power to regulate the press. So they had to have an argument of where congress got the
power to pass such a statute, and not just an argument as to why the First Amendment would have barred it. So I tried to explore that package, the way in which the Jeffersonians
contested that package between 1798 and 1800. And then what happened to that package or its pieces, component pieces, once the Jeffersonians came into power. And that kind of dialectical analysis of the rise and fall
of structures of ideas is something that I really have enjoyed doing my whole career. – And interestingly
enough, this body of ideas, even when the Jeffersonians come in, are not totally rejected. And for example, Jefferson criticized the
concept of inherent powers, which had been justified because it was what other
nation states were doing. And he said, hey, this will work for me when I want to acquire
the Louisiana Purchase. – Well his friends said
this will work for you. And he said, “Well, I’m not so sure. “We should get a constitutional amendment. “But if you think this will
work, let’s go for it.” He was circumspect but
he nevertheless invoked the very doctrine which he had
spent the previous five years condemning in order to justify
the purchase of Louisiana. – In the sedition acts it said okay, you can publish, because
of the First Amendment, but if you publish
things that are not true then you can be sued for libel. – You can be prosecuted and punished. – And Jefferson’s and the
republicans’ reaction to that was this will create a monarchy. What aspect of this that you’re describing is that as a legal aspects
are embedded in the politics, the way they are characterized is part of the political process and the criticism can lead
to extreme exaggeration. So Jefferson was saying
this will lead to monarchy. It will destroy the
Constitution. And on and on. So this is another way in which the interface of these two processes help us understand where we wind up. – Absolutely. And surely, if the
Jeffersonian’s really exaggerated about a number of points
between 1798 and 1800, and they really did. They anticipated the political tactics we see in our own time. Exaggeration is also still very much a part of the political process. You’d have to listen to MSNBC
and Fox News for a few days. – What are you left with, as a historian, as you think about current affairs, whatever your ideology is? Are you left with a sense that really things don’t change much because of the constitutional
order, the fragmented system, the structure of the government that was created by the founding fathers. And every time somebody uses
an originalist argument, which Wechsler did, it just confirms that everybody is agreed about that system. But maybe that system can’t help us solve some of the new problems
that are emerging. – It might not be able to. Certainly its capacity
for growth and change has been substantial over 200 years. We might not like all the developments. We might not like, as I suggest, happened in the aftermath
of the Sedition Act crisis is that certain ideas which people had dismissed as ridiculous and impossible suddenly became feasible, feasible again. So there’s always change in the American constitutional
and political orders. They don’t always lead to the solutions on particular policy questions, or to a kind of political culture that we might wish we had
in our more utopian moments. So, I’m hopeful for the future. I don’t suggest that my
career of scholarship in any way suggests that
problems can’t be solved. But it does suggest that it’s difficult. And maybe it was designed to be difficult. – One last question. How would you advise students
to prepare for the future, especially historians and lawyers, as they deal with the set of problems they’re gonna have to deal with? – Well my favorite
admonitions along those lines came from Louis Brandeis, who said, deal with problems in their context. Deal with situations. Get
to the bottom of the facts. Don’t worry too much about theory. Generate a good result. Be, in other words, pragmatic. And I think pragmatic politics
or pragmatic lawyering are to be much more valued than
ideologically laden politics or ideologically laden law. The heroes in my anti-rent book are the very fine lawyers
who tried to transcend the particular interests of everybody, come up with solutions that would work, and to think of ways in
which those solutions could be melded, in logical ways, into the party’s public philosophy so it would have a good chance of resonating with the legislators, resonating with their
constituents, and getting enacted. The guys I really don’t like in that book were the ideologically driven, politically opportunistic types. Unfortunately we have many of those, many more of those, at work
in American politics today than we have of the Brandeis-like pragmatic lawyers and pragmatic
policy-oriented politicians. – Well, Professor McCurdy,
thank you very much for coming to deliver
the Jefferson lecture and being a guest on our program to talk about being a
historian of the legal system. Thank you.
– Thank you. – And thank you very much for joining us for this Conversation with History.


  • Darrell Icenogle

    Well done. His nudges and references turn into your masterful tours of the legal landscape in a particular historical context. You reveal a lot of yourself, here, and sage advice. We share archetypes of heroes and villains …and most influential professors.

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