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Who are “the people?”

My previous post said that some courts have held that the Second Amendment does not apply to illegal aliens in part because they are not part of “the people” described in the Constitution.  Why should we think that “the people” is a term of art rather than just a plural for person?

Here’s how the Supreme Court explained this in United States v. Verdugo-Urquidez:

The Preamble declares that the Constitution is ordained and established by “the People of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U.S. Const., Amdt. 1 (“Congress shall make no law … abridging … the right of the people peaceably to assemble”); Art. I, § 2, cl. 1 (“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States”). While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904) (Excludable alien is not entitled to First Amendment rights, because “[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law”). The language of these Amendments contrasts with the words “person” and “ accused” used in the Fifth and Sixth Amendments regulating procedure in criminal cases.

If we go back further, Dred Scott said that “the words ‘people of the United States’ and ‘citizens’ are synonymous terms.”  As far as I know, this was the first judicial statement on the issue, but this cannot be the only definition of “the people” in the Constitution, as that would mean legal aliens are not protected by the Second or the Fourth Amendment.  On the other hand, legal aliens do not vote for members of the House of Representatives, which would support the narrower view of what “the people” are. Note that the definition given in Verdugo-Urquidez (and repeated in Heller) does not cite any Founding-era materials.

Here is one last conundrum.  In incorporating the Second and Fourth Amendments, the Court held that these rights are fundamental, implicit in the concept of ordered liberty, etc.  If so, how can they not apply to illegal aliens?  Are there two kinds of fundamental rights?  Some apply to illegal aliens (say free exercise of religion) and some do not?  Perhaps one should say that any incorporated right applies to everyone, whereas unincorporated rights do not.

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Illegal Immigrants and the Bill of Rights

My next article is going to analyze the application of the Bill of Rights to illegal immigrants.  Some circuit courts have held (drawing in part on language in Heller) that the Second Amendment does not apply to them.  The Supreme Court has expressly reserved the issue of whether the Fourth Amendment applies to them.  These are important questions that I would like to address in a series of posts.

Here is the basic problem.  There are parts of the Bill of Rights that clearly apply to all persons.  (The Fifth Amendment’s protections for grand jury indictment, double jeopardy, self-incrimination, and due process.)  Other parts use definitions that are defined in terms that can apply to any person.  The Sixth Amendment refers to “the accused,” the Third Amendment refers to “any house,” and the Seventh Amendment refers to “suits at common law.”  Still other parts make general statements that cannot be limited to only some (The Eighth Amendment and most of the First Amendment).

Other parts of the Bill of Rights, though, that use the term “the people” to refer to the right in question.  (The Second, Fourth, Ninth, and Tenth Amendments, along with the Assembly and Petition Clauses of the First Amendment.)  The Supreme Court has said (more than once) that this term is not just the plural of person.  Instead, “the people” refers to the American political community and thus arguably excludes illegal aliens.  If this interpretation is correct, then there are two tiers of rights in the Bill of Rights.  In the Fourteenth Amendment, of course, there are two tiers of rights (privileges or immunities for citizens, due process and equal protection for everyone).  But is this reading of “the people” right?  I’ll take that up in another post.

This is just one piece of the puzzle.  Consider also that the Amendments that use “the people” have been incorporated through the Due Process Clause of the Fourteenth Amendment, which uses the term person.  Does this mean that the rights in the states are broader in scope than as against the National Government? If not, why?  Here’s another.  Does “the people” mean the same thing in each amendment that uses it?  Can you distinguish, say, the Fourth Amendment from the Second?  How does this relate to “We the People” in the Preamble?  And what about the Ninth Amendment?  Are some people entitled to unwritten rights but not others?  More to come.

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FAN 48 (First Amendment News) The Dangers and Values of Offensive Speech

 If you want the minority and Danish majority to live together in peaceful ways, you have to ask if hate speech is fruitful. — Carsten Jensen (Danish author and political columnist)

In Mumbai, India a newspaper was shut down recently and its editor arrested for reprinting a 2006 Charlie Hebdo cartoon of the Prophet Muhammad weeping. According to a New York Times story, such “news coverage often conflicts with the government’s efforts to protect religious groups from insult and disrespect.” One of those who filed a police complaint was Nusrat Ali, a reporter. “You are free to write anything in our country, but you are not free to hurt religious sentiments,” he said. “Why would [Shirin Dalvi] print something that has caused tension and violence across the world?” he asked. “Publishing such cartoons threatens the peace and calm of our country.”

Professor Geoffrey Stone

Professor Geoffrey Stone

Legitimate concerns, real dangers. Ask yourself: what if those dangers became more likely and imminent here? How strong would our commitment to free speech be? Mindful of that, in a thoughtful Huffington Post piece  titled “Charlie Hebdo and the First Amendment,” University of Chicago Law Professor Geoffrey Stone asks:

Are there any circumstances in which the government can constitutionally silence a speaker because others threaten violence if the speaker is allowed to proceed? Consider an extreme hypothetical. Suppose ISIS threatens to behead six American hostages if anyone in the United States publishes or otherwise displays the Charlie Hebdo cartoons. Can our government, consistent with the First Amendment, make it a crime for anyone to do so? The Supreme Court has never faced such a case. What do you think?

Okay, how’s this for starters? — The proposed law seems to codify the heckler’s veto (or, more aptly put, a terrorist’s veto). Even before we venture to answer Professor Stone’s question we would have to assume that such a law would be precise and narrowly tailored, this as a constitutional threshold matter. That said, is the gravity of the threatened evil so great as to relieve the government of its constitutional obligation to, in Professor Stone’s words, “take every possible measure to prevent the violence before it may silence the speaker”? If so, would not the terrorist’s veto almost always trump the speaker’s First Amendment rights?

Terrorism is just bullying, extreme bullying. — Bill Maher (Jan. 2015)

Among other things, Professor Stone’s hypothetical invites us to think hard about just how far down the free speech road we wish to travel when that path may lead to lethal dangers. However absolutist the defenders of free speech may be, even they have their limits as Pater Holmes made clear in his Abrams dissent.

The Values of Offensive Speech 

Ilya Shapiro

Ilya Shapiro

But there is more to this free speech debate than the dangers of so-called hate speech; there is also the question of the values, if any, of such speech. And that is the question that Carsten Jensen asks us to consider in the epigraph quote above.

Thankfully, a brief recently filed in the Supreme Court by the Cato Institute speaks to precisely that question. The amicus brief was submitted by Ilya Shapiro (counsel of record) and Robert Corn-Revere in Walker v. Texas Division, Sons of Confederate Veterans, the license plate case that will be argued next month.

Here are a few excerpts from their brief, which was recently filed with the Court:

 – Offensive Speech Contributes to the Marketplace of Ideas: “The borderlands of the marketplace of ideas are inhabited by ideas that unsettle and offend. Only those ideas that people are allowed to express can be freely traded, so a “free trade in ideas” cannot exist when some ideas are relegated to the black market. . . . Indeed, because offensive speech changes the parameters of the marketplace, it is as vital to the exchange of ideas as so-called mainstream speech. Without expanding the borders of the marketplace, a society may stagnate. If no one ever offensively says ‘the Emperor has no clothes’ then a society may be condemned to dynasties of naked emperors, and that would be truly offensive.”

And they quote Salman Rushdie, “who certainly knows something about offending people: ‘What is freedom of expression? Without the freedom to offend, it ceases to exist. Without the freedom to challenge, even to satirise all orthodoxies, including religious orthodoxies, it ceases to exist.'”

 Offensive Speech Fosters Self Expression and Helps Develop Personal Autonomy: “Expressing one’s deepest thoughts, feelings, and values is vital to defining oneself as a unique and autonomous individual. Those who are restrained from self-expression are often called ‘repressed,’ and years of therapy is often the cure. . . . Even more than ‘mainstream’ speech, offensive speech helps define us. Our commonalities do less to define our personalities than our eccentricities, offensive or otherwise. If speech is squelched by the government because it ‘might be offensive to any member of the public,’ then the government has closed off an important avenue for self-expression.”

There is more, much more, to this truly insightful (dare I say inciteful?) brief. In a legal world where amicus briefs too often add little beyond formulaic case-crunching, this brief is chock-full of value added, and for that reason I commend it to you.

Meanwhile, I leave you with the closing words of the Cato brief: “It would be offensive to the First Amendment for this Court allow Texas to tell us what is offensive. After all, one man’s offensive speech is another’s exercise of social commentary or personal expression.”

Is Flower v. U.S. (1972) still good law? . .  . & why that question is important 

On remand, the United States Court of Appeals affirmed Mr. Apel’s conviction, rejecting his First Amendment argument with no mention or apparent consideration of Flower v. United States. It seemingly accepted the argument made by the United States that Flower is no longer good law. — Erwin Chemerinsky, cert. petition in Apel v. United States (2015)

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The Terrorist’s Veto

We live in terrorist times — post-Charlie Hebdo times. In this brutish world the target of attack is liberty as we know it, the kind in which people come together to discuss “Art, Blasphemy and the Freedom of Expression.” But as recent events in Copenhagen reveal, even in that world armed guards may not be enough to turn back the barbarity at the door. What to do?

Carsten Jensen, a Danish author and political columnist, urges us to reconsider our commitment to free speech freedom: “If you want the minority and Danish majority to live together in peaceful ways, you have to ask if hate speech is fruitful.”

Fair question, fair point. So is hate speech fruitful? Just for the sake of argument, let us say that it is – that vibrant criticism of a radical fringe of a religious group is important to the wellbeing of democratic rule. What then? I suspect the temptation to roll back freedom would be much the same. Why? Because the terrorists have terrorized us.

The terrorist’s veto is the savage cousin of the heckler’s veto. The logic of both is the same: freedom of speech is abridged in order to prevent the dangerous behavior of the reacting party. Once such veto power is granted, either formally or functionally, the hostile audience gets its way while freedom flees.

It really doesn’t matter if the speech in question is hateful or political or what have you. One only need look back in history to see how Salvation Army members, Jehovah’s Witnesses, Socialists, labor activists, racial justice activists, and political activists were silenced by the veto power. And recall that Professor Harry Kalven coined the phrase “heckler’s veto” in connection with bigoted opposition to free speech freedom in support of racial justice. (See his The Negro and the First Amendment (1965).)

It makes for a strange legal brew: once empowered, the veto renders the lawful unlawful; it turns liberty into license; and in the process reconstitutes our system of constitutional freedom in favor of ruthless anarchy. In his 1897 Introduction to the Study of the Law of the Constitution, the famed British jurist and constitutional theorist A.V. Dicey contested such legal logic:

[N]o meeting which would not otherwise be illegal becomes unlawful because it will excite opposition which is itself unlawful, and thus will indirectly lead to a breach of the peace. The plain principle is that A’s right to do a lawful act, namely walk down the High Street, cannot be diminished by X’s threat to do an unlawful act, namely to knock A down.

To develop Dicey’s point a bit, there is something profoundly disturbing about conditioning one person’s lawful free speech rights based on the degree of unlawful hostility demonstrated by the speaker’s adversaries. (See Note, “Constitutional Law — Unconstitutional Abridgement of Free Speech by Municipal Ordinance,” 24 N.Y.U. L. Rev. 891, 893 (1949).) In this regard, Professor Franklyn Haiman put it powerfully nearly a half-century ago when he countered: “Only by the firmest display of the government’s intention to use all the power at its disposal to protect the constitutional rights of dissenters will hecklers be discouraged from taking the law into their own hands.”

What is really at stake here is not so much the value of so-called hate speech as the willingness of a free society to recommit itself to freedom in the face of ferocious opposition. Having grown fat on freedom, we are use to tolerating speech with which we disagree if only because the consequences are typically of no moment. Hence, we defend the free speech principle because it’s risk-free. To borrow from old Tom Paine, we are “sunshine patriots” when it comes to defending free speech freedom. But if they bad guys ratchet up the consequences of our toleration, will we continue hold firm to our commitment?

There is no escaping it: In a democracy committed to the principle of free speech, the veto power – be it that of the heckler or the terrorist – must not be permitted to silence a society. For if you take the risks out of freedom, nothing of real value remains. In such a world, the tyranny of the veto is emboldened by the cowardice of the people.

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George H.W. Bush on the Bill of Rights

George_H._W._Bush,_President_of_the_United_States,_official_portraitIn my draft article on the Bill of Rights, I make a big deal about the sesquicentennial of the ratification of the first set of amendments in December 1941.  Now that I’m working on a book, I’ve been looking at the bicentennial in 1991.  One notable part of that celebration was a speech by President Bush 41 marking the occasion at Montpelier, James Madison’s estate in Virginia.

What I find interesting about this speech is that it gives a Reagan Revolution/1980s conservative take on the Bill of Rights that you don’t see elsewhere.  (This is also the only presidential address in recent decades that focuses on the Bill of Rights.)  Consider this passage:

[The Framers] gave us not a declaration of rights but a Bill of Rights, not a piece of propaganda but a set of legally enforceable constraints on government.  Most important, they drafted a Bill of Rights that reflected the higher nature and the aspirations of the American people, a bill that grew out of the American character, not one grafted onto it for the sake of some abstract theory.

There’s a lesson in this for today’s writers of national constitutions and international treaties, some of whom are with us today.  Today, one often hears the concept of rights attached to specific social services or material standards of living.  The framers, however, did not elevate acquisition of even the most vital goods and services to the status of rights.  They trusted people to make the most of their liberty and to respond to the challenge of assuming responsibility for themselves, their families, their communities, and their government.  And they understood that paternalism is just a sugar-coated tyranny.

Another insight from Bush’s speech is the way in which he discussed the Second and Third Amendments:  “The protections of personal rights, the safeguard against arbitrary actions of the military against private property, and the guarantee of the right to keep and bear arms have enhanced the public’s respect for our law enforcement and military authorities.”  He also talks at some length about the Takings Clause, the Tenth Amendment, and property rights.  You can find the whole thing here.

 

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Best Practices Panel Report for LSAC

In May 2014, the United States Department of Justice (“DOJ”) and the California Department of Fair Employment and Housing (“DFEH”) entered into a consent decree with the Law School Admission Council (“LSAC”) regarding their practices regarding test accommodation requests on the LSAT.  Under this consent decree, they agreed to stop flagging test scores taken under conditions of accommodation, created a $7.73 million compensation fund for previous test takers not granted accommodations, agreed to some streamlined changes in their accommodation process, and agreed to implement additional best practices recommended by a five-person panel of experts.

DOJ/DFEH chose two members of the expert panel, LSAC chose two members and those four members chose the fifth member from a list created by DOJ/DFEH. The panel of experts issued its report on January 26, 2015. Those recommendations automatically go into effect unless one of the parties notifies the other parties that it plans to challenge some of these recommendations.

This executive summary summarizes the panel’s recommendations. The recommendations were fully supported by 4 of 5 panel members, including one panel member chosen by LSAC.

As one of the five panel members, I hope you agree that our recommendations are sound and appropriate, and should be implemented as soon as possible.  You might want to consider speaking to a member of the LSAC Board or LSAC Executive Director Daniel Bernstine about your support for our recommendations.

 

 

 

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Facebook’s new Legacy Contact Option

I’ve now signed up for a Legacy Contact through Facebook, and I’ve designated trusted contacts to have access to my Google accounts through Google’s Inactive Account Manager when I no longer have access.  I think about these issues a lot: for the past few years, I’ve been working with the Uniform Law Commission on making it easier for fiduciaries to access the digital assets of the account holders for whom they are fiduciaries, and for account holders to plan on what will happen to their digital assets when they die.  Delaware has already enacted the legislation, and various states are considering it.  A few other states have non-comprehensive legislation.  So, in the absence of state laws – or even with state laws –  the problem is how to plan for your online life when you can no longer manage it.  Today, Facebook joined Google in prompting people to start making plans.  The options on Facebook are still somewhat limited — your Contact doesn’t have complete control over your page, and may not be able to delete it — but this is   a really positive development.

Setting up a Contact is quite easy from the Facebook Settings page, and more instructions are here.  I’ve also written quite a lot about this issue (as have many others!).

 

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Certiorari Denials

Over on Balkinization, I wrote a post suggesting that the Justices adopt a practice of publicly noting the votes on each certiorari petition.  Since then, I’ve done some research that adds some context to that issue.

It appears that no Justice publicly dissented from a certiorari decision until 1950.  Justice Frankfurter was the first to do so, and he argued that noting dissents from every denial would be unwise because that would not convey any useful information.  In any given case, there could be many reasons for refusing to grant certiorari, thus doing so without an explanation would not tell you much, if anything.  In 1976, Justice Stevens argued (in what was in effect a concurrence to a cert denial), that noting cert dissents was a bad idea because it would breach the confidentiality of those discussions and thus hurt their quality.

I’m not persuaded by either of these explanations.  Sure a vote for or against certiorari (without more) is ambiguous, but does it really tell us nothing helpful?  And would the Justices really discuss the petitions differently if the votes were disclosed?  Now they might vote differently, but I’m not sure that the way they vote now is better in any meaningful way.

Now it is true that disclosure of this information may not be as high a priority as, say, getting oral arguments televised.  Fair enough.  But I still think (in a tentative way) that disclosure of certiorari votes would be a better practice.

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FAN 47 (First Amendment News) Anniversary Issue: Returning “Home” — Looking Back on Fox v. Washington (1915)

Anniversary: It was a year ago (February 10, 2014 to be precise) that I posted my first FAN column on Concurring Opinions. Now, 46-plus posts later (there were also a number of non-scheduled posts), I think the endeavor well worth the time to spread the First Amendment word — the serious and silly, the admirable and objectionable, the high and low, the liberal and conservative, and everything in between and beyond. Thanks to Dan Solove (our blog publisher) for inviting me onboard. Dan’s respect for the integrity of the work product and his encouragement to take it to “the next level” have made the adventure all the more challenging and exciting. Thanks also to all those who so kindly directed First Amendment news my way. In the coming year I hope to improve on what works while testing out a few new ways of how to look at our free speech world. — RKLC      

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“The agitator is the mostly roundly abused and at the same time most necessary individual in society.” Jay Fox 

Colony of Home (credit: Justin Wadland, Trying Home (2014))

Colony of Home (credit: Justin Wadland, Trying Home (2014))

Ponder this creed: HOME is where freedom resides. That ideal was as much a personal hope as it was a political ideal for some who long ago traveled through Puget Sound to a cove in the Pacific Northwest. They toiled first to buy nearby land (26 acres) and then to build on it — not just log cabins but a commune of anarchists, radical feminists, artists, and free-thinking women and men dedicated to a way of living very much counter to the conventions of late 19th century America.

It began in 1896 when a group of free-spirt types, known as “Homeites,” set out to establish the utopian colony of Home. Things started out well in this idyllic community as more and more families came and pitched in to make Home their home. As they invested more and more of their lives into that experiment in freedom, their lifestyles drew more and more attention beyond the borders of their beloved Home. And that proved to be a problem — one with realpolitik consequences.

“In 1902, after charges of violation of the Comstock Act resulting from an article advocating free-love published in the local anarchist newspaper Discontent: Mother of Progress, Home’s post office was closed by postal inspectors and moved two miles to the smaller town of Lakebay.” (Source here). But that did not stop their counter-culture ways. True to their libertine life styles, some “Homeites” took to nude sun tanning in the woods of the Key Peninsula, near Tacoma in Washington State.

It was too good to last: In short time, four individuals were arrested for indecent exposure. Incensed by their arrests, on July 11, 1911 Jay Fox (1870-1961), the editor of The Agitator, published an essay entitled “The Nudes and the Prudes.” In it Fox — an independent-minded man devoted to halting “the crimes of capitalism” — urged boycotts of the businesses of those who railed against nude bathing.

Note: “The Agitator” bold text above is a copy of the original banner of Jay Fox’s publication.

According to Washington State historian and librarian Mary M. Carr, “The Agitator made its first appearance on November 18, 1910, although in his editorial Fox proclaimed that it appeared on November 11, the 25th [sic] anniversary of the execution of the Haymarket martyrs. (Actually, he was four days late for the 23d anniversary.) In its subtitle, The Agitator defined itself as an ‘Advocate of the Modem School, Industrial Unionism, and Individual Freedom.’ Fox declared that it would ‘stand for freedom first, last and all the time,’ and would promote the right of every person to express his opinions. He hoped to popularize knowledge so that common toilers, as well as the ‘rich and privileged class’ cou1d be ‘uplifted to philosophy and science.'”

“It is only by agitation that the laws of the land are made better. It is only by agitation that reforms have been broughtabout in the world. Show me a country where there is the most tyranny and I’ll show you the country where there is no free speech. This country was settled on that right, the right of free expression.”Jay Fox (January 11, 1912)

Not surprisingly, Fox’s passionate opposition to the prudish ways of those in power did not sit well with Washington State’s bluenose establishment. Hence, he was prosecuted  under a Washington statute that prohibited printing or circulating publications that encouraged a commission of a crime. Fox was tried and convicted in 1912 and received a two month sentence, which the Washington Supreme Court declined to set aside in State v. Fox, 71 Wash. 185 (1912). Review was then sought in the United States Supreme Court.

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Grant Gilmore’s Resurrection . . . with a little help from Philip Bobbitt

 Grant was a magician in an age of bureaucrats. — Anthony Kronman (1982)

Grant Gilmore

Grant Gilmore

The Ages of American Law has been reissued with a new foreword and a new final chapter by Columbia Law School Professor Philip Bobbitt. More about that soon, but first a few words about the man recently reincarnated.

Grant Gilmore died on May 24, 1982 — the same date of Benjamin Cardozo’s birth (May 24, 1870). G.G. died in his sleep; he was 72.

Gilmore was a Yale man (AB, 1931, PhD, 1936 & L.L.B, 1942) bred in the Boston suburbs. He began his academic career teaching French at Yale, but he tired of it and so ventured into law. He taught at Yale Law School, University of Chicago Law School, the College of Law (now Moritz College of Law) at Ohio State University, and finally at Vermont Law School. His books included:

Though he was picked by the executors of the Oliver Wendell Holmes papers to do the definite biography of Justice Holmes (very strange!), it never came to pass. And he never published his PhD dissertation — Stephane Mallarme: A Biography and Interpretation (1936). By way of an interesting aside: In 1959 Professor Arthur Corbin privately recommended Gilmore to serve as an advisor for the drafting of The Restatement (2nd) of Contracts (also strange). As fate had it, that, too, never came to pass and Gilmore never became a “restater.”

By the time he died, the complex and cantankerous Gilmore had made his mark on the law, and a notable though peculiar mark it was. For all his fame and infamy, no gravestone marked his memory. His scattered ashes were his final consideration, illusory as that may seem.

Ironically, this bold and blazing scholar left his papers to the Harvard Law School — the same institution that held firmly to the conviction that “inspiration should be distrusted,” or so Gilmore put it in 1963, albeit with a critical cutting edge.

∇ ∇ ∇

Philip Bobbitt

Philip Bobbitt

And now, like the Phoenix of old, he returns to find new life. Or at least that part of him arising from The Ages of American Lawwhich has just been republished in Kindle form. Here, as Professor Bobbitt recounts it, is how it came to pass: “In late 2011, I was approached by an editor at Yale University Press, who was considering a revised edition of Grant Gilmore’s classic, The Ages of American Law. I responded that I would be pleased if the Press would publish, as a Foreword to such an edition, my 1975 essay in the Yale Law Journal introducing one of Gilmore’s lectures, ‘The Age of Anxiety,’ which he reworked to form Chapter 4 of the book. After reading that essay,” adds Bobbitt, “the editor proposed that it be published as a ‘historical document with a preface to provide context’ and that I should also draft a new section bringing it up to date, as apparently some readers wished in the classes in which the book is taught.”

41seNslJYSL._BO2,204,203,200_PIsitb-sticker-v3-big,TopRight,0,-55_SX278_SY278_PIkin4,BottomRight,1,22_AA300_SH20_OU01_That is how Bobbitt’s fascinating foreword begins. But there is much more, about Robert Cover, the famed Storrs Lectures (Oct. 1974), and young Philip Bobbitt’s role in it all. (Gilmore thanked Bobbitt in the acknowledgements to Ages. It was, after all, Bobbitt who had drafted the “Editors’ Introduction” to Gilmore’s “The Age of Anxiety” essay published in 1975 in the Yale Law Journal).

Bonus: There is a new 50-age chapter (#6) added to Ages: it is by Bobbitt and is titled “The Age of Consent,” which first appeared last year in the Yale Law Journal.

* * * *

 Book Review of The Ages of American Law, Mark Tushnet, American Journal of Legal History (1977).

→ Ellen A. Peters, “Grant Gilmore and the Illusion of Certainty,” Yale Law Journal (1982)