Boundaries and Balancing in Constitutional History: A Review of Hyman and Wiecek'sEqual Justice Under Law

Abstract

Mark V. Tushnet is Professor of Law, Georgetown University Law Center. B.A. 1967, Harvard College; J.D., M.A. 1971, Yale University. 1. Harold M. Hyman & William M. Wiecek, Equal Justice Under Law: Constitutional Development 1835-1875 (New York: Harper & Row, 1982). This is perhaps point to get a few quibbles out of way. Occasionally Hyman and Wiecek make trivial errors, usually in connection with subtle points of law. Sometimes this occurs when they strive for relevance by citing contemporary developments. See, e.g., p. 236 n.6 (saying that Laird v. Tatum, 408 U.S. 1 (1972), sustained right of military intelligence personnel to investigate civilians' loyalty; case actually held only that in posture presented, that issue was unripe for adjudication); p. 426 n.71 (saying that Thurgood Marshall was then of NAACP in 1964, when he was a judge); and p. 453 (stating that Supreme Court in 1973 accepted jurisdiction of impeachment questions in a case actually involving a judicial subpoena to president in a case formally unrelated to impeachment). At other times errors involve period of book. See, e.g., p. 175 (the authors say that in order to demonstrate that federal trial court had jurisdiction, Dred Scott had burden of either establishing diversity or appealing from court result under Section 25 of Judiciary Act of 1789, a provision applicable to appeals to Supreme Court and totally irrelevant to trial court jurisdiction); p. 180 (describing circularity in holding that a black could not be a citizen after relying on diversity as a jurisdictional basis; this ignores theory that a court always has jurisdiction to decide its jurisdiction); and p. 240 (criticizing Taney in Exparte Merryman for treating federal habeas corpus as ever-ready defense of all individuals' civil liberties, especially against unjust imprisonment by any national or official when according to authors, state habeas was one that counted, especially in criminal authors provide no evidence that Taney, who had before him paradigmatic federal habeas case in detention of a person by federal military authorities who acted without judicial supervision, had habeas in mind, and given its irrelevance in situation it is unlikely that he did). Sometimes legal analysis, while arguably correct, is puzzling in absence of argument. See, e.g., p. 123 (after describing maneuvers to admit Texas as a without requiring two-thirds vote in Senate for a treaty, authors say that the Texas precedent later served to justify admission of Hawaii . . . in 1898-since Hawaii was annexed, not admitted, in 1898, it is hard to see how an example of immediate admission as a could serve as a precedent); p. 176 (stating that if blacks were citizens of A under article III definition of citizenship, fugitives would be able to circumvent statutory ban on jury trials-the authors provide no argument to support that conclusion, and only one I can imagine is complex and implausible); p. 251 (referring to the constitutional constraint on attainder, with a citation to article III, section 3, restricting punishment for treason, where it would appear that proper reference is to bill of attainder clause, article I, section 9, clause 3); and p. 495 (describing Virginia v. Rives, 100 U.S. 313 (1880), as denying that the monochromatic character of juries reflected partiality; Rives holds only that a criminal case may not be removed from a to a federal court on basis of an alleged custom, not embodied in enacted law, of racial exclusion from juries; it does not hold that a conviction returned by a jury from which blacks had been excluded by custom would survive either direct review by Supreme Court or federal habeas corpus). Almost all of these examples illustrate an unfortunate tendency to use today's standards to describe and evaluate past.