Harvard University Press Blog

Grief, Mourning, and the Politics of Memorialization

Jay D. Aronson’s Who Owns the Dead? tells the story of the recovery, identification, and memorialization of those killed in the September 11, 2001, attacks on the World Trade Center in New York City. The assault came at just the moment in history when large-scale DNA identification efforts were becoming possible, and innovations in biotechnology and forensic science led NYC’s Chief Medical Examiner to pledge the identification and return of all human remains discovered in the wreckage of Ground Zero. This massive and monumentally difficult task—the largest and most costly forensic investigation in history—was undertaken not just for the victims’ families, but also for a range of social, cultural, and political reasons that have contributed to fifteen years of contention and debate both within the community of families and between families and officials responsible for finding, identifying, and memorializing the dead.

In interweaving the forensic identification effort with the vexed planning for the 9/11 Memorial and Museum, Aronson demonstrates America’s struggle with the fraught composite of private and public grief that’s regularly visited upon other parts of the world. His book’s closing thoughts are below.

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On the evening before the National September 11 Memorial and Museum formally opened to the public, donors and corporate supporters were fêted with a cocktail party to recognize their contributions to making the museum possible. For relatives who had labored tirelessly to ensure the creation of a museum that honored the memory of their loved ones, the party was a culmination of more than a decade of advocacy and planning. For relatives who opposed the museum plans and had worked so hard to bring victims’ remains above ground, the party was an outrage. The event added to their sense that the people who planned and financed the memorial and museum were more concerned about their own legacies than the feelings of those who lost family and friends on September 11. The dead, it seemed to some, belonged first and foremost to the powerful.

The insult of having victims’ remains stored in the basement of the museum, and the perception that those remains were being used to entice tourists to pay for entrance, was too much to bear. For Rosemary Cain, mother of firefighter George Cain, museum officials were “grave robbers” using the remains of World Trade Center victims for “greed and ego,” not to uplift the nation or provide solace to those in mourning. For Jim Riches, the presence of remains in the repository would keep him away. “I’ll never set foot in that museum,” he insisted, “until those remains are out of there and above grade on a plaza in a respectful place where it’s open to all the public to go for free.”

Thus, in the end, the situation appears to be stuck in a web of competing interests and viewpoints. One can imagine many different outcomes, but there is no simple solution to the storage of the remains of World Trade Center victims that will satisfy every one. Sites similar to the National 9/11 Memorial and Museum—Srebrenica, Auschwitz, Gettysburg, Hiroshima—did not have to weigh the need to memorialize against the need to redevelop and revitalize the surroundings in the stark terms that confronted the stakeholders at the World Trade Center site. While dissenting families offered alternative locations for the storage of remains, the city dismissed them as being impractical.

Ultimately, the dispute about the storage of remains points to the fact that the new scientific identification techniques being developed in the context of the September 11 attacks and other mass fatality events are a double-edged sword. They promise, at least in theory, to eliminate the possibility of identifiable remains being left unidentified. But the same advances in identification techniques mean that remains must be cared for and kept present, both physically and in the minds of surviving relatives and society at large, until they can be identified. In her letter to 9/11 families regarding the transfer of remains to the repository, acting chief medical examiner Barbara A. Sampson, who took over from Charles Hirsch when he retired at the end of 2014, reiterated the Office of the Chief Medical Examiner (OCME)’s commitment to “do whatever it takes for as long as it takes to identify all those who lost their lives.” Thus, the remains of the World Trade Center attacks can never fully be laid to rest and become part of “the past.”

“Operation Sting” and the Creation of Crime Itself

Among the general public, the rise of mass incarceration in America is usually attributed to Ronald Reagan’s “War on Drugs.” In From the War on Poverty to the War on Crime, though, historian Elizabeth Hinton reveals that the nation’s prison problem is the outcome of a historical process that began under the Johnson administration during a period known more for its civil rights legislation and social welfare initiatives than for criminalization of the urban poor. Those Great Society programs were entangled with a set of assumptions about African Americans, poverty, and crime that underwrote the passage of the 1965 Law Enforcement Assistance Act, which authorized the infusion of federal money to “modernize” local law enforcement. By the mid-1970s, the federal government had embraced a new tactic, granting urban police departments money to purchase and fence stolen goods as a means of attracting criminals. As Hinton reveals in the passage excerpted below, what started as one outrageous setup in Washington, DC, soon spread across the nation, and these carefully orchestrated sting operations quickly evolved into an attack on black petty thieves and came to involve the creation of crime itself—a central feature of the rise of the carceral state.

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The Washington, DC, Police Department’s sting effort was the most elaborate and the most contrived of those supported by this federal funding. In the summer of 1975, Washington police lieutenant Robert Arscott had set up a small fake fencing operation masquerading as the consulting firm “Urban Research Associates.” The undercover officer who manned the operation in downtown Washington sat behind a desk with a hidden camera and a tape recorder, hoping that thieves who had recently lifted office equipment would attempt to sell the stolen merchandise to the Urban Research Associates outfit. But amid the highest unemployment rate since 1941, the façade attracted more job seekers than criminals. The police department promptly shut down Urban Research Associates.

For its next attempt, the DC Police Department used federal and local funds to purchase an unheated warehouse near Langdon Park in the segregated northeast side of the District as a more convincing space for illegal transactions. Beginning in fall 1975, law enforcement purchased $2.4 million worth of stolen property with $67,000 in government funds. The project, called “Operation Sting,” involved the FBI, the Bureau of Alcohol, Tobacco, and Firearms, and the Law Enforcement Assistance Act (LEAA). After only five months, the initiative succeeded in its implicit purpose: to round up hundreds of small-time crooks, nearly all of them unemployed black men. The undercover police officers and federal agents posing as Mafia “dons” gave themselves Italian names straight out of the then-recent Godfather films, including “Angelo Lasagna,” “Mike Franzino,” “Tony Bonano,” “Rico Rigatone,” and “Bohana LaFountaine.” None of the officers were of Italian descent, but they interspersed terms like “Ciao” and “Arrivederci” as they played these roles.

Operation Sting created a demand for crime by providing crooks with a market on which to sell stolen goods. Word quickly spread that the fencing outfit, known to its customers as PFF Inc (for “Police-FBI Fencing Incognito”), was tied to the Mafia and would pay the highest prices in town. The petty thieves furnished PFF Inc with typewriters, adding machines, radios, and television sets, and then went back out to steal more items for the “dons.” If no valuable material goods were to be found, the crooks went after their neighbors’ mail, bringing stolen housing and welfare checks and credit cards. As their employer, PFF Inc provided the thieves with a steady and continuous source of income as long as they could deliver the plunder.

Putting the First Amendment Second: The Censorial Impulse in the 21st Century

Many would be surprised by the charge that American schools are engaged in the widespread and court-sanctioned denial of the constitutional rights of their students. Yet as Catherine J. Ross demonstrates in Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights, that is precisely the case. In an address this week to the annual meeting of the Association of American Publishers, Ross, Professor of Law at George Washington University and Visiting Scholar at Harvard’s Graduate School of Education, laid bare the decades-long campaign against free speech in American schools and its implications for democracy, as well as its significance for the publishing industry, a long-standing bulwark against assaults on First Amendment rights. The text of her address is below.

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Publishing is a key institution for realizing the values of free expression. This organization—through the Freedom to Read Committee and other activities designed to combat censorship—plays a leadership role, and it is an honor to address you today.

It’s no secret that in many—even most—parts of the world principles of free speech have never been accepted or are not currently being honored. The most dramatic, and certainly best known incidents, involve the assassin’s veto: private persons killing those who publish ideas some find offensive, exemplified by the threats following depictions of the prophet in Denmark and the Charlie Hebdo attack.

But that is the tip of the iceberg, as the New York Times pointed out in an editorial yesterday, in which it condemned recent developments in Western Europe where anti-terrorism laws are being used to prosecute puppeteers, tweeters, and peaceful demonstrators.

In other parts of the world:

• Liberal bloggers are murdered in Bangladesh,
• India arrests student protesters,
• And the highest court in Malaysia held last week that a yellow t-shirt calling for clean government could be banned as a threat to national security.

But we should not be smug, or assume our own house is in order. I’ll begin by reminding you about some of the fundamental precepts of the First Amendment’s Speech Clause, before turning to the state of free speech on American college campuses. Then I will share my research on the fragile state of expressive freedom in public schools, grades k-12. I’ll close with some reflections on the special role the people in this room play in preserving First Amendment freedoms.

I. First Amendment Freedom of Speech

The Speech Clause of the First Amendment is very concise: “Congress shall make no law . . . abridging the freedom of speech.”

This means the government—at every level, from small towns to the federal government, and anyone acting on behalf of the government—may not silence speech because of its content or viewpoint. The First Amendment does not limit the ability of private individuals or organizations to limit expression.

The books your companies put into circulation enter a civic culture that may be more or less receptive to discord, dissent and unsettling ideas some would prefer not to be exposed to.

Meanwhile, in Cruz News

One can imagine the legal scholar’s conflict when Donald Trump pushes constitutional matters to the fore, as when he questions Canadian-born Ted Cruz’s eligibility for the presidency. On the one hand, this isn’t exactly who you imagined setting your agenda. On the other, loud public squabbles over history and citizenship—no matter their origin—fairly cry for calmer heads.

For his part, Jack Balkin, author most recently of Living Originalism, outlines the key theoretical questions he sees in play at his Balkinization blog:

1. whether “natural born citizen” should be understood as a lay member of the public would understand it or whether is a legal term of art;
2. whether, if it is a legal term of art, it is a fixed concept whose contours are fully determined by practices and understandings existing in 1788, or whether is a common law concept subject to evolutionary development;
3. whether the meaning of “natural born citizen” depends only on English common law authorities (for example, Blackstone's account in 1765), or whether its application depends, as parts of English common law do, on statutory changes that become established parts of customary practice and thus are absorbed into the constitution-in-practice;
4. whether the meaning of “natural born citizen,” even if vague in 1788, has become liquidated in practice by congressional statutes (like the Naturalization Acts beginning in 1790); and
5. whether the scope of “natural born citizen” cannot be altered by Congress, or whether it should be read together with Congress’s powers under the Naturalization Clause. In the latter case, the Constitution might give Congress the power to determine who is automatically an American citizen at birth and declare such persons natural born citizens for purposes of the Constitution.

From there, he offers his own preliminary view on the question: eligible.

Elsewhere, historian Nathan Perl-Rosenthal, author of Citizen Sailors: Becoming American in the Age of Revolution, joined legal scholar Sam Erman in an attempt to redirect the debate. As they see it, the prevailing arguments over the meaning of “natural born” rest on the notion that the phrase had a single meaning that can be discerned purely from the text of the Constitution—a notion they say is rendered “entirely unwarranted in the case of citizenship law” by two things we know about early American history:

First, in the decades before the American Revolution the British Parliament had repeatedly expanded the meaning of “natural born” by statute, eventually including even children born of British parents on foreign soil. These repeated changes to the law at a minimum point to significant disagreement about the proper meaning of the term “natural born” around the time the Constitution was drafted. It may even be that the more inclusive meaning of “natural born” had already become a rule at common law by the time of the Revolution: Sir William Blackstone, the leading eighteenth-century English legal authority, used the past tense in 1765 when describing the more restrictive common law meaning of “natural-born.”

Second, and perhaps more discomfiting to the modern lawyer’s eye, historians have known for some time that Americans in the early Republic treated national citizenship as an afterthought. Most rights for most people in the early United States inhered in the states, not in the federal government. The Framers spent little time fretting over who was and was not a U.S. citizen. Consider that “naturalization” appears in the records of the first forty years of Congress just 65 times. That is just a handful more times than Congress discussed “spirits” and a tiny fraction of the number of instances in which Congress debated “tariffs,” to take just one other topic that is less on the minds of the general public today than citizenship.

Far from dismissing the question of Cruz’s eligibility, though, they argue instead that jurists and the public should dispense with inconclusive eighteenth century evidence and accept that “the final decision rests with us.”

Citizenship as Property

That legal scholar Ayelet Shachar could write in 2009 of birthright citizenship as a legal apparatus so enshrined as to seem a fact of nature and yet today leading candidates for the presidential nomination of one of our two major parties can pledge its repeal is but one of countless signs that the political times they are a changin’. While the Donald Trumps and Scott Walkers aim to do away with birthright citizenship so as to more tightly restrict membership in the American polity, Shachar intended to provoke a new consideration of the arbitrary criteria we use to bestow a status that carries such immense value as citizenship. She argued for seeing citizenship as a sort of inherited property, the ownership of which confers great privilege on those born in certain countries while those born in certain others may risk their lives in the trunks of cars or the holds of ships for a shot at sharing what for others is a lucky fact of life. Shachar’s The Birthright Lottery: Citizenship and Global Inequality—excerpted below—asks why we accept the hereditary passage of citizenship when such generational transfer has become so discredited in so many other realms.

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It was none other than Alexis de Tocqueville who, in Democracy in America, famously warned about the social and political dangers of inherited property becoming the basis of enduring privilege. A similar cautionary tale is worth telling about birthright citizenship in an unequal world like our own. In confronting the complexity of the current system of citizenship transfer, I aim to offer a new way of thinking about political membership by drawing a conceptual analogy between birthright citizenship and inherited property. This perspective creates a space in which to explore membership entitlement in the broader context of today’s urgent debates about global justice and the distribution of opportunity.

For those granted a head start simply because they were born into a flourishing political community, it may be difficult to appreciate the extent to which others are disadvantaged due to the lottery of birthright. But the global statistics are revealing. Children born in the poorest nations are five times more likely to die before the age of five. Those who survive their early years will, in all likelihood, lack access to basic subsistence services such as clean water and shelter, and are ten times more likely to be malnourished than children in wealthier countries. Many will not enjoy access to even basic education, and those out of school are more likely to be girls than boys. The odds that they will either witness, or themselves suffer, human rights abuses are also significantly increased. What is more, these disparities that attach to birthright citizenship are not a matter of individual desert or fault; rather, they represent systemic and structural patterns. In such a world, citizenship laws assigning political membership by birthright play a crucial role in the distribution of basic social conditions and life opportunities on a global scale.

My intention is not to belabor the familiar argument that such extreme inequality of actual life chances is morally and ethically troubling. Rather, the point here is more subtle: by focusing on the often neglected angle of membership transfer, I wish to call attention to the crucial role played by existing legal regimes for allocating entitlement to political membership (according to birthright) in restricting access to well off polities and sustaining the privilege of inherited entitlement. I further wish to destabilize the notion that such reliance is “natural” and, in this sense, apolitical. This latter notion serves to legitimize (and make invisible) the significant intergenerational transfers of wealth and power, as well as security and opportunity, which are currently maintained under the seal of the birthright regime of membership allocation. By highlighting the analogy to inherited property regimes, it becomes possible to call attention to the manifold ways in which reliance on birth in the assignment of citizenship regularizes, naturalizes, and legitimizes distinctions not only between jurisdictions, but also between vastly unequal bequests. Framed in this way, we can begin to acknowledge the massive estate-preserving implications of inherited citizenship regimes as they exist today. Drawing upon the rich body of democratic theory and property jurisprudence, this book sets out to expose—and challenge—the moral problem of unburdened intergenerational transmission of citizenship.

Why the Supreme Court's Marriage Decision Won’t Be the Next Roe v. Wade

In the wake of the Supreme Court’s decision in Obergefell v. Hodges, many have looked to the Roe v. Wade ruling in an effort to forecast the cultural and political impact of federally sanctioned same-sex marriage. But as Mary Ziegler shows in After Roe: The Lost History of the Abortion Debate, the narrative that now surrounds that decision and its effects overly simplifies what was a very fluid situation, projecting today’s polarities further back in time than the history supports. Below, Ziegler outlines the folly in declaring Obergefell the next Roe when we still have such trouble understanding the first.

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Critics of the Supreme Court’s recent marriage equality decision, Obergefell v. Hodges, have predicted that it will be the next Roe v. Wade. Indeed, comparison of Obergefell and Roe has become almost mandatory for Republican presidential candidates and conservative activists.

Some use the analogy to criticize the Court for short-circuiting political debate about marriage in the states. Others clearly want the Court to worry about the consequences of striking down marriage bans in so many states. Politicians turn to these arguments because they might appeal to voters otherwise supportive of marriage equality. If Obergefell is indeed the next Roe, the Court may have once again escalated the culture wars, making it harder for Americans to agree on issues of sexuality or gender, much less on same-sex marriage itself.

Are the Court’s critics right? At first blush, the comparison between Roe and Obergefell seems unconvincing. While the nation remains divided about abortion, polls have shown increasing support for marriage equality, particularly among younger Americans. For many, the moral issues also seem easily distinguishable. Pro-life Americans argue that a woman’s decision to choose abortion harms a person not included in the decision. Longstanding agreements about fetal personhood aside, the argument that abortion is not a purely self-regarding act is much easier to make than any related claim about marriage equality.

“Does the Constitution Follow the Flag?”

“Never during my three years as a law student or two years as a law clerk at federal courts did I hear of the ‘Insular Cases.’ Yet the series of US Supreme Court decisions gathered under this name established a doctrine, in force to this day, determining that the US Constitution does not apply fully to territories acquired through conquest after the Spanish-American War and the signing of the Treaty of Paris in 1898.” So writes Harvard Law School Dean Martha Minow in her Preface to Reconsidering the Insular Cases: The Past and Future of the American Empire, the latest publication from Harvard Law School’s Human Rights Program. The volume grew out of a February 2014 conference at Harvard that was organized to interrogate this century-old series of Supreme Court decisions that, judging by Minow’s experience, aren’t often given the attention they deserve. As Juan R. Torruella, Puerto Rico-born Judge of the US Court of Appeals for the First Circuit expressed in his conference keynote—included in the printed volume—“the Insular Cases represent classic Plessy v. Ferguson legal doctrine and thought that should be eradicated from present-day constitutional reasoning.”

In his Introduction to the book, excerpted below, Harvard Law School professor Gerald L. Neuman further elaborates on the need to continually question a doctrine that raises crucial issues of both constitutional law and human rights.

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The US Supreme Court’s decisions in the Insular Cases of 1901 provided the legal framework for the governance of a colonial empire in the Atlantic and the Pacific, loosening the constraints of constitutional principle in order to facilitate rule over the subjected areas and their inhabitants. In the wake of the Spanish-American War and the transfer of several of Spain’s imperial possessions, the metaphorically expressed question “Does the Constitution follow the flag?” became newly urgent. The Supreme Court majority gave a new answer: not entirely.

The most important of the 1901 decisions was Downes v. Bidwell, in which the court divided five to four in favor of congressional power to discriminate between the mainland and the new territories in customs matters. In retrospect, the crucial opinion was the concurrence of Justice Edward Douglass White. He accepted that the US Constitution governed the actions of the United States at any location, but he contended that it was still necessary to determine the appropriate geographical scope of each constitutional provision. The applicability of a constitutional limitation to a particular territory would depend on the situation of the territory and its relations to the United States. If the United States acquired a new territory and did not admit it as a state, then Congress could choose whether to “incorporate” the territory into the United States as an integral part or to treat it merely as a territory appurtenant to the United States. White thereby adopted a distinction that had been suggested by the political scientist Abbott Lawrence Lowell in an article in the Harvard Law Review, although White added some elements of his own in elaborating the consequences. For incorporated territories, the Bill of Rights and other constitutional limitations would apply in the usual way. For unincorporated territories, only “fundamental” restrictions on government power would apply. Moreover, an unincorporated territory could be kept in subordination indefinitely, without the prospect of future statehood. The United States had to have the same power to acquire and govern overseas territories and populations as the European colonial powers were exercising under international law.

After Roe

Today, the 42nd anniversary of the Supreme Court’s decision in Roe v. Wade, thousands will gather in Washington to partake in the March for Life, an annual demonstration against “the greatest human rights violation of our time.” The March is but one of countless expressions of the common understanding of Roe as a signal event in the formation of America’s political and cultural divide. As legal scholar Mary Ziegler argues in After Roe: The Lost History of the Abortion Debate, though, by paying attention so exclusively to the Supreme Court we have lost a much richer story about the evolution of abortion politics. “Rather than remaining preoccupied by the Court’s actions,” she writes, “competing social movements had to navigate the realignment of both major political parties, the mobilization of the Religious Right and the New Right, the changing politics of population control and civil rights, and the popularization of neoliberalism.”

After Roe, to be published this spring, traces these forces through the decade following the Roe decision, informed by oral histories taken from over 100 of the activists and advocates who comprised those social movements. 

An adapted excerpt from Ziegler’s Foreword appears below.

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The conventional wisdom holds that the Roe opinion provoked a major grassroots pro-life challenge to the legitimacy of the Supreme Court. For the abortion-rights movement, the story goes, Roe discouraged efforts to develop a broader and more equitable agenda that advanced all women’s interest in accessing contraception, child care, and health care and in avoiding sterilization abuse.

Historians, Supreme Court justices, and legal scholars with disparate normative views on abortion have united in their criticism of Roe’s broader societal impact: the opinion supposedly short-circuited a previously innovative dialogue between competing movements about what abortion rights ought to mean. Roe purportedly pushed American movement politics toward the “clash of absolutes” famously described by Laurence Tribe, as activists fought bitterly about the Equal Rights Amendment, contraception, and women’s role in the American polity. By focusing so heavily on the effect of the Supreme Court’s decision, however, scholars have exaggerated the importance of judicial intervention. In putting the Court at the center of the story, we have lost sight of equally important contributions made by the politicians, lobbyists, and grassroots activists who shaped the clash of absolutes Tribe discusses.

Events and activism since 1973 have transformed and multiplied the meanings of “Roe.” Opposing activists deployed Roe in ways calculated to change the course of abortion politics. Within the abortion-rights movement, feminists used Roe as a reminder that abortion was a women’s issue. At times, some movement members saw Roe as a symbol of the dangers of a single-issue agenda. In fundraising campaigns and efforts to mobilize new supporters, activists on opposing sides of the abortion wars reinterpreted the Roe decision in order to shape public consciousness of what the Court had said and whether its opinion deserved support.

Questioning "Closure" for Civil Rights Murders

Fifty years ago this weekend, in the Freedom Summer of 1964, the civil rights activists James Chaney, Andrew Goodman and Michael Schwerner went missing in Mississippi, their bodies recovered 44 days later. Their violent murders at the hands of Ku Klux Klansmen had a galvanizing effect on the civil rights movement but saw no legal redress until the state of Mississippi successfully prosecuted Klan leader Edgar Ray Killen in 2005.

That trial was part of a wave of “retrospective justice” efforts that have led to the reopening of more than one hundred murder cases since the mid-1990s. In Racial Reckoning: Prosecuting America’s Civil Rights Murders, which we’ll publish this fall, historian Renee Romano examines the complex dynamics of a long overdue public reckoning that may serve to offer “narratives of redemption” that the country has not yet rightly earned. We discussed these issues with Romano in the exchange posted below.

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Q. What prompted your interest in the reopened civil rights trials? Which aspects of your research most surprised you?

I first became interested in civil rights trials when I was working on a project about the historical memory of the civil rights movement. I am very interested in the question of how different groups represent the past and to what end. I was exploring different sites where the movement is represented—films, fiction, museums, monuments—and I realized that the courtroom was another key place where the movement was being discussed and portrayed. I began examining these trials and was surprised by how many cases had been reopened, how long and hard family members had worked for legal justice, and how much attention journalists and politicians were paying to civil rights murders. It became clear to me that there was something going on with these cases collectively that needed to be explained.

What surprised me most, perhaps, were the ways in which contemporary prosecutions have become the subject of a political struggle between those who support them as a way to close the door on the past and those who hope to harness to them as a political project of shedding new light on the past in order to promote social and racial justice in the present.

Q. What forces conspired to make the 1990s the moment when prosecutions for crimes committed 30 years earlier were finally reopened?

A range of factors came together in the 1990s and 2000s to enable these decades-old cases to be reopened. These murders were committed during an era of racial terror and intimidation, and they were often hushed up; blacks were afraid of talking about them, whites wanted to move on. But relatives and friends of victims always hoped they might be able to secure legal justice for their loved ones some day. Getting cases reopened took a lot of hard work on their part to keep pressure on southern authorities to revisit them.

That project became more possible in the 1990s for a host of reasons. For one thing, the civil rights movement succeeded in changing many people’s attitudes about racial discrimination. Many Americans came to embrace the idea that the law should treat people equally regardless of race. In that environment, unpunished racially motivated killings became more disturbing and it became easier for relatives to make the case that it was worth the time and effort to put now-elderly men in jail.

Journalists played a huge role in getting these civil rights-era murder cases reopened. By the 1990s, there were new sources becoming available to journalists, like the previously secret records of the Mississippi Sovereignty Commission. There was also growing cultural fascination with cold cases in general, and new formats like the television newsmagazine encouraged lengthy stories of dramatic crimes. Journalists helped bring attention to civil rights murders, they humanized the victims, and very importantly, they often did the investigative legwork that allowed authorities to reopen cases.

Finally, by the 1990s and 2000s a new generation of white southern political figures was coming to realize that the South as a region continued to be stigmatized as racist and backwards in part because so many of these murder cases remained unresolved. Many of the southern prosecutors or district attorneys who worked on these cases came to believe that there was more to be gained by revisiting civil rights violence than by continuing to ignore it.

The Religious Roots of Constitutional Change

Jack Balkin’s “living originalism” notwithstanding, views of the constitution’s meaning as either fixed or fluid are typically in opposition. And, like so much else these days, the dispute is often observed to map neatly onto social divides: conservatives and the religiously inclined lean originalist, while the left says the document lives. There’s an irony, then, in John W. Compton’s contention that teetotaling nineteenth-century evangelical Protestants paved the way for the most important constitutional developments of the twentieth century. Compton makes his case in The Evangelical Origins of the Living Constitution, the argument of which he introduces below.

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In twenty-first century America, religion seems to go hand in hand with veneration of the Constitution and its framers. Recent polling from the Pew Research Center, for example, suggests that devout believers are far more likely than other Americans to endorse the view that the Constitution should be interpreted as “originally written.” Socially conservative politicians, in turn, routinely object to the nomination of judges whose past decisions or public statements are deemed inconsistent with the “original meaning” of the text. And every year, dozens of books portraying the framers as orthodox Christian believers and the Constitution as divinely inspired appear in bookstores.

In light of such evidence, it should come as no surprise that scholars have rarely looked to religious Americans or religiously-inspired social movements as instruments of constitutional change. Indeed, some have argued for a natural affinity between Biblical literalism, on the one hand, and a quasi-religious deference to the views of the founding generation, on the other.

And yet, religious Americans’ affinity for the Constitution has varied greatly over time. During the antebellum period, pious abolitionists publicly burned copies of the Constitution to protest provisions protecting the rights of slaveholders. A few decades later, prohibitionists, including at least one U.S. Senator, denounced the Constitution as “the great legal fortress of intemperance” and “the great almighty obstacle in the way of…reform.” Early anti-lottery crusaders, in turn, likened constitutional provisions protecting the contractual rights of lottery operators to the Biblical King Herod’s infamous agreement with Salome.

Why did the nation’s earliest religious activists often express disdain for a constitutional inheritance that their twenty-first-century successors regard with awed reverence? In short, through a process I trace in The Evangelical Origins of the Living Constitution, evangelicals living in the aftermath of the Second Great Awakening came to regard as sinful many forms of property that the founding generation had tolerated, or even actively promoted. And as movements to eradicate sinful forms of property gained momentum, reformers soon discovered that the nation’s constitutional system was ill equipped to accommodate a radical shift in social mores. For while the framers did not set out with the aim of inhibiting the moral development of future generations, they did envision a republic whose fundamental law would hinder attempts to interfere with settled property rights or restrict the flow of goods in interstate markets. And for this reason, the evangelical-led effort to rid the nation of newly immoral forms of property was from the outset hampered by serious constitutional obstacles.

Over time, evangelical reformers succeeded in winning a series of judicial concessions that not only facilitated the abolition of “sinful” forms of property but also weakened property rights and federalism constraints in areas far removed from moral reform. Indeed, one unintended effect of the successful evangelical crusades against liquor and lottery gambling was to convince many Americans that foundational constitutional categories, including “property” and “commerce,” were social constructs that could—and should—be reinterpreted to reflect the nation’s evolving sense of morality. In this way, the evangelical reform movements of the nineteenth and early twentieth centuries helped pave the way for the better known constitutional changes of the New Deal period, including the vast expansion of federal regulatory authority under the commerce power.

This finding calls into question the widely held view, recently expressed by former House Speaker Newt Gingrich, that the constitutional changes of the New Deal period were the work of “anti-religious” or “secular” forces. If we have abandoned the property-centered constitutional vision of the framers, much of the blame (or credit, depending on one’s perspective) lies with an earlier generation of evangelicals, including the revivalist Lyman Beecher, who preached that Americans must never “do wrong in obedience to custom.”