How did free African Americans before the Civil War regard the Constitution, freedom, and citizenship in a republic that excluded them from political participation? In the latest episode of Real Cases, we sit down with Stetson Professor James Fox to discuss the fuzzy boundaries between history and legal scholarship, different varieties of originalism on today’s Supreme Court, and how greater racial diversity in the academy advances new ways of understanding the past.
Transcript:
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our history does have these important critical exclusions, excluding African Americans from the policy, excluding women of all races from participation in politics for the majority of our history. And so there are real questions of constitutional law. Can we implement a constitutional law that women had no part in creating or African Americans were excluded from?
And in fact, the constitutional law and the Constitution itself originally was designed to promote a white supremacy because it basically promoted slavery. Those are really important functions for us if we're doing historical work as a part of current law. And so one of my projects is an effort to try to open up the resource space and figure out ways that we can account for people who didn't have a political voice and take their concerns into account historically as well as in the present.
This is Real Cases, a legal podcast presented by the Stetson University College of Law. We'll sit down with Stetson Law faculty and students to examine today's critical cases and debates in environmental, international, elder, and business law, plus the role of social justice in these fields. Join us as we open the case file. Episode 25, History, the Law, and Constitutional Consciousness.
I'm Daniel O'Keefe, Master of English Literature from Indiana University. Today we're joined by Stetson Professor James W. Fox. Professor Fox teaches and writes in the areas of constitutional law, contract law, American legal history, and poverty law.
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His current research considers how the ideas and experiences of African Americans in the 19th century can expand notions of constitutional law and the ways we think about constitutional history and interpretation. His work also looks at the intersection of civil society and public sphere theory as they relate to citizenship and freedom. Professor Fox served as chair of the section on legal history of the Association of American Law Schools from 2014 to 2015, and he served as associate dean for academic affairs,
and Associate Dean for Faculty Development at Stetson. Well, thank you so much for being here. I'd like to start by asking you about your most recent area of research, which I think is a topic that most people probably haven't really heard of and that most people would be interested to learn more about. So let's begin by telling me what 19th century African-American constitutionalism is. How would you explain it to a lay person who knows nothing about the topic?
Sure Dan, first of all let me say it's a pleasure to be here and have a chance to talk with you about these topics and whatever you're interested in. you're right that the area that I do most of my writing over the past several years has been 19th century constitutional history and particularly with the focus on African-American experiences and writings and speeches from that.
that period, right? So the idea of both before the Civil War, the Antebellum period, and after the Civil War, the Reconstruction and post-Reconstruction period. And what I'm doing there, when I first started 20 years ago now as a scholar looking at legal history and constitutional history in the US, I was reading a lot about the people who wrote the 14th
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13th, 14th, 15th Amendment, particularly the 14th Amendment. the amendments that were passed right after the Civil War, often called the Reconstruction Amendments. Major change to the Constitution, really important in courses such as constitutional law, really important for law and litigation from that period on. So a sort of core period in our constitutional history. And a lot of what I was reading was about the people who
drafted or vote the amendments and others who were speaking about it at the time, but they were all essentially all white men, many of whom had really interesting ideas and the debates and conflicts that are really important for everyone to study. But I thought that it was interesting and a little bit odd that we didn't really see much in the law reviews or even in Supreme Court opinions.
about how African Americans at the time viewed these amendments, especially considering they were certainly the primary beneficiaries, intended beneficiaries of the The whole point of the Reconstruction period and the amendments was to sort of bring fully African Americans into the polity, sort of ending racial slavery very dramatically in a very short period, something that did not happen that way in very many countries.
and sort of creating this idea of equal citizenship. And the main beneficiaries didn't really have much of a role in the written history and the written law about it from what I was reading. And the more I got into this, I learned that a lot of historians starting about the 1980s or so had done a lot of study of that, like what African-Americans at the time were saying and doing.
a lot of that research hadn't really made it over into the constitutional law area or legal history that was going on with law schools and the courts. And so I decided to start spending some time with that. That's how I got into today. And one of the things that I found and that I've written on more recently is that African Americans in the period before the war, so from about the
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1620s to the 1850s were engaged in a lot of writing and conventions. It's a very common thing back in the 19th Have conventions on political topics. That's just one of the ways people didn't have Zoom. People didn't have any analysis. They didn't have a way to get, so they actually got together in person to have meetings and issue public statements. And this
is true in a lot of areas. A lot of different groups did this. But for African-Americans, particularly African-American men, were the primary participants in these, although African-American women were associated with some of the conventions and did some important work, primarily men speaking and writing at these, actually had a bit to say about what did freedom mean to them, what
was the role of the Constitution, the Declaration of Independence, and their idea of being an American, even before the Civil War, when they were thinking about ending the second class citizenship that they had. And this, course, was particularly in the North, right? So before the Civil War, these were not enslaved African Americans. So these were Black people who were free in the North.
and trying to really work out what is this country mean to us, what do ideas of citizenship and freedom mean to us. And that a lot of that, in fact, fed in through the abolitionist movement, fed into the ideas of the reconstruction of the United States. And so I've been trying to bring some connections between these as a way of, in a sense, know, broadening our scope in
looking at constitutional history. I'm only one of many people who've been doing this. There's some really good work on African-American history, on women's history. There's some excellent stuff being done on native history and sort of sort of set outside of the constitution in that way. So there are a lot of people who are doing this in the 20 years since I started.
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But that's how I got interested in it and I found that I was just fascinated and I did this and that.
I realize this is probably a terribly broad question to ask, can you say a little bit about what you feel like are some of the reinterpretations of legal debates and questions that are ongoing that you feel like you've been able to intervene in as a result of importing these historical discussions over?
Sure, really, one that has probably the most currency, and it's one that I've written on some, but as other people, is thinking about ideas like the film of action. And I know that you talked a little bit, my colleague Professor Lake, about the use of Harvard UNC, and it's one of the actions. And one of the things that's very interesting in some of the cases, and particularly in the way
the justices, Justice Thomas and Justice Sidney Mayor and Justice Jackson, the dialogue that they get into is really based on the history, the core African-American history from the 19th century. And one of the things that they're debating there is whether affirmative action programs, programs that take for immediate purposes, that take race into account to try to benefit.
groups that have been disadvantaged because of their race. And so the remedy takes account of race to try to reduce all that or remedy and so on. Those sorts of programs. Well, were those, the question was, were those programs actually in existence at the time the 14th Amendment was being ratified? And what did people at the time think about whether taking race into account as a remedy
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was itself a violation of an equality principle. That's a really big question. It's an important question. And it's one that we as a society have been struggling with for 50 years and that the Supreme Court has been struggling with in a line of cases that Professor Wade talked about some. And so one of the things you see from that time is both that the Congress at the time actually had some
through these bureau programs that pretty clearly took place into account. They were programs that were specifically designed for African-Americans to try to address and remedy some of the problems that they knew were going to be faced by ending racial slavery in the country. But you also see, one of the things that I saw is African-Americans at the time
were debating this question too, because they were concerned that having programs that did recognize race, race conscious programs, also had an aspect of stigma to them, something that Justice Thomas talked about and really emphasized, and sort of problem we have to advise.
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you know, that would be a problem. That's not consistent with equality principles. And so in African American conventions prior to the Civil War, there were debates essentially about affirmative action programs and about race consciousness. That is, for them at the time, the question was, should we have, for instance, a convention that is exclusive to African American? Should we have programs or should we start a press?
that is exclusive. And so they debated this and they resolved it, interestingly, by saying, well, the whole problem of race isn't something we created. So the reason that we need to have some, like a block of press. So one of the things that means very important to them is setting up newspapers and magazines that address that in their initiatives, the block of press. Really important.
institution in the 19th century. And one of the justifications that they gave for why it's important to now compress this focus on African-American concerns is that that's the only way you're going to address this problem of race and racial exclusion is simply the world that we find ourselves in. And because of that, we have to have a race consciousness to address it.
Even if our goal in race consciousness is to lead to a equal citizenship where race isn't as important. So it is seen as that path. But it was one, it was recognized by them as a problem, as a concern. And so you then see after the war, some of the same considerations come up. Should you have schools that are
originally segregated schools were not. So for African-Americans participating in reconstruction governments in the South, that was a big question. Should we have integrated schools? we not? And one of the points that they discussed then was, well, the first thing we need is a school. We've got to have education. And if the only way we're gonna get the education is by having schools that are segregated, we'll do that. Even though we don't think that's the right
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ultimate answer. And so they were pushing for sort of full integration, but realizing that they didn't want integration to get in the way of education. Those are some really interesting debates. It doesn't mean that there's necessarily that they themselves had the right answer to these questions. But the way in which African-American communities were discussing these questions, I think really broadens
our understanding of our history and of how we can now think about these problems. It doesn't answer the questions for us, but it might actually either raise new questions or shed important new light on some of these really critical problems even for us today.
That's fascinating. I I think also, and I realized that the term originalism is a thorny one. But it seems to me like part of what you're saying here also is that trying to seek a better and more full historical understanding of how these concepts were being considered by different groups in different communities at the time.
is one that is particularly important in light of the fact that there is a more prevailingly originalist way of approaching constitutional interpretation? that, would you say that's roughly?
Yeah, I think you're right on about that. certainly, originalism has become one of the important forms of constitutional appropriation over the past several decades. And there is a loop, both because from a law professor's point of view, it's something that
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our students need to pay attention to because it is one of the ways that judges make decisions. So you need to be able to talk to the judges in the language that they are wanting to use. And so being able to understand what some of the arguments based in originalism are and how that works is important. In addition, one of the things that I was looking at was not only learning what
originalism is. And I asked that sometime, right? Part of my work has been thinking about what originalism is and what it can be, what it does and what it doesn't do, right? What the appropriate role for historical research is. And so one of the things that I've been trying to do is look at expanding the scope of resources and questions
historically as a way of making people who are focused on historical sources and might in fact limit themselves to historical sources, which is one of the principles of ritualism. I think it's a problematic one, but it is one that is there, is that the historical evidence should give us answers. We should limit ourselves to that.
If you're going to do that, then you should be looking more broadly, especially because our history does have these important critical exclusions, excluding African-Americans from the politics, excluding women of all races from participation in politics for the majority of our history. And so there are real questions of constitutional law. Can we implement a constitutional law that
women had no part in creating it, or African Americans were extremely strong. And in fact, the constitutional law and the constitution itself originally was designed to promote a white supremacy because it basically promoted slavery. Those are really important questions for us if we're doing historical work as a part of current law. And so one of my projects is trying to
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It's an effort to try to open up the sort of resource space and figure out ways that we can account for people who didn't have a political voice and take their concerns into account historically as well as in the present. We can talk some more about originalism and its sort of role. I'm happy to do that.
But I would note that actually one of the things in the affirmative action case, the Hartford-Gernsey affirmative action case, essentially is a type of debate about originalism between Justice Thomas, who's a conservative politicalist, and Justice Jackson, who is trying to open up originalist-style arguments that are more from a liberal point of view. So you sort of see a back and forth of the use of history.
in their opinions, which I think is very interesting and long term is probably going to be healthy that there is that debate that Justice Jackson is there to have that debate with Justice Thomas and that Justice Thomas is there to represent what is essentially a conservative, particularly a black conservative point of view. And I think that long term makes it richer, but it makes it very difficult at the time because there are some difficult debates to have.
Yeah. Yeah, I, it's interesting. Part of what you were saying just now made me think of something I recently I've occasionally I've heard when people make a certain sort of argument against originalism. One of the things that I've occasionally heard people say is that, well, lawyers, judges, congressmen are not professional historians and
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to expect them to have the level of depth or nuance that a professional historian would have about the context in which 100 plus year old laws were written, to expect them to have that understanding as they go about the act of interpreting what those laws mean is misguided. And that it's misguided also to expect them to be able to write
new laws, to expect the legislature to be able to write new laws, keeping that kind of historical understanding in mind as well. And while on the one hand, I can see how that might be a compelling sort of argument to say that lawyers aren't professional historians, and therefore these fields are separate. And to expect them to engage in a certain kind of originalism is to ask them to do a work that they're unprepared for. At the same time,
It also seems like with what you're doing, you're showing how, well, if we are going to expect people to do this kind of originalist work, then one thing, do this kind of originalist interpretation, then real effort ought to be put into expanding the historical sources and the historical understanding that people have when they try to conceptualize what
these popular understandings of the law or of amendments to the Constitution would have been at the time. Does that make sense? Do you understand what I'm getting at?
I think that's right. And I think, that you've really hit on what is one of the core criticisms of originalism, the extent to which it can actually, judges and lawyers can do the historical work very well. And that if in fact there may be mistakes in history, then are we in fact getting worse and worse? Are we getting a law that
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where people are using history as sort of a way to hide or sneak in other sort of present concerns or opinions or policies and things like that. And that's certainly a concern. What I think I'll do first is talk a little bit about what originalism is and how originalism and historical
history and the use of history and constitutional law aren't quite the same thing, because I think people are very often confused any time they see some historical discussion in a Supreme Court opinion. going to think, that's originalism. And that's not true. And originalism is a sort of more specific thing, and for both good and ill, right? So it's helpful to draw that distinction. So for a long time, we've used
Yeah.
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historical study in constitutional law, in part because we're working with a document that is our history, right? I mean, you know, our current governing law is something that has been written over time, to an amended over 230 years. And we that that's, need to account for that in some sense. And we should be proud of that. Right. So it's it's something that we have a lot to learn from
the experiences we have had as a country and as a legal culture with this thing that has been with us for a long time. Many countries don't have the opportunity to sort of incorporate their history in the way they think about themselves in the present in the law in this way, because their constitutions are newer. And so historical study has always been part of constitutional law to some degree.
What originalism is doing though is really trying to get a focus on coming up with an answer about how to interpret a particular part of the constitution and limit what you can say or do as a court based on that. And so one of the important things about originalism is not just that it looks at history, but it will only look at that
if the judges think that they could come up with an answer. So for instance, what does it mean for Congress to be able to regulate in the state of commerce? Well, should we be looking at how commerce as a concept is understood at the time it was written, which Justice Thomas says we should. And you can do historical study about that and you can come up with a range of answers about what commerce was like then. But what we know is that
It did not involve trains. It did not involve planes. It did not involve cars. It did not involve the internet. That there's what we think of now as interstate commerce and what interstate commerce has made our country is entirely different from the thing people were thinking about and thinking about regulating in 1788. It's just both because the world has changed and the
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the idea of concepts, the concepts have changed. And so you can use the history of that, essentially economic history of the United States from 1788 to 2024. And that historical study can be part of your constitutional interpretation. And in fact, what you see in court cases is that's essentially what the Supreme Court has done over time.
Justice Thomas would use originalism to only look at one period and to give us an answer and only an answer, which would be pretty restrictive for what the federal government could do. And there's a real question under Justice Thomas's originalist approach, whether the federal government could protect your food. So some basic things about could the federal government implement food safety?
That would actually be a question under Justice Thomas's approach. The Supreme Court has not adopted that. And even the current justices who are also conservative have not adopted that because they recognize that the rest of the history also matters. And so that's one of the big differences between a sort of conservative or hardcore originalism that
that Justice Thomas is the best representative, that even Justice Scalia was more open to change over time than Justice Thomas has been. And that idea that using the history in constitutional interpretation and originalism are a bit different in that important respect.
I wanted to ask you about a line that I saw that was in the abstract of one of your articles, your article, The Constitution of Black Abolitionism. So you say at one point that you're seeking to focus on quote, what might be described as constitutional consciousness, if not precisely constitutional law. And I'm interested to know a little bit about what
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What exactly do you mean by that? And what ramifications does that have both for that article, but also for your research more broadly?
Sure. So what I'm getting at there is there's different ways of thinking about the importance of constitutional society. One of the obvious areas is that the Constitution itself is law and that courts develop precedent implementing the law, sort of creating new law in detail in order to apply to constitution. So the creation of constitutional law, a lot of what we study in a
law school constitutional law course. There's going to be books on that constitutional law. But we also have an idea of the Constitution people's common understanding of the Constitution in American democracy. And some of that will be connected with the law, but some of it will be a little bit different from the law. So people have currently, if you ask them, what does the Constitution mean to you or what are some important principles from the Constitution?
People will say sometimes things such as freedom of speech and that the way they'll talk about freedom of speech will in fact have very little to do with the First Amendment, but it'll have a lot to do with the extension of Supreme Court doctrine in the 20th and 21st century and with sort of cultural ideas about how it's important for people to be able to speak. So people a lot of times will talk about freedom of speech or First Amendment.
as applied in private settings, So private, like with their employers or in other private settings, which of course has nothing to do with constitutional law where the first amendment applies to restrict the government to do. But the concept of free speech is really a core American cultural idea and has a lot of value and creates its own set of norms
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that we think about when we conceive of ourselves as constitutional people, right? So as people in a culture that has this constitutional consciousness. So it's that type of thing, that distinction between what might be considered sort of the sociological idea of what the constitution means to us and what it means in constitutional law. Now, I take that idea, and so when I was going back to look at especially
the antebellum so before the reconstruction amendment and african americans are writing and thinking about themselves as citizens but they have no role at all in making the law right so not able to vote not able to serve in congress or the state legislatures not able to be lawyers so the the exclusion of african americans from all the avenues that create
On the one hand, it means that if we only look at legal sources for thinking about constitutional history, we're going to miss that. So that's one of the things you have to do when you're trying to brand previously excluded groups into your study of constitutional history is think a little more broadly about what the constitution means. And then if you start seeing it as, well, why in the world would people who the vast majority
of whom were enslaved. And they were still struggling in the North, even three blacks were subject to Jim Crow. Jim Crow actually began segregation begins in the American North, not in the South. And why in the world would they value seeing themselves as American citizens and as the Constitution and the Declaration is being important?
sources of meaning for them. And the reason is there was still this idea of basic values of the rule of law, equality principles, both equality and liberty, right? So the important role of what it means to be free, right? In a lot of ways, it was even more important for African-Americans to be forward of war.
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to think seriously about what freedom means, because it was so important in their daily lives. And so the denial of freedom and equality itself created a culture within African-American communities of thinking more seriously about what real freedom means and what real equality could be.
And so there's the discussions that they have, I think, are more of a constitutional consciousness. They aren't trying to write a new law. They're trying to have the country rethink what it means. One of the things you see is an effort to think more seriously about the Declaration of Independence. This has really seen Frederick Douglass as this really great speech that he gave in 1852.
the day after July 4th. He was asked to give a July 4th speech. He said, I can't do it on July 4th. And basically, my speech is going to explain why. And he gives this wonderful, just masterful speech where he sort of moves through, I see why you think the Declaration is important, but it's important for you, not for me. And here's why. And so what he's doing there is essentially calling on white Americans to realize
is that they're failing the Declaration and that they have to end slavery and really take seriously equality in order to live up to that ideal. He's making the Declaration an aspirational goal, not something from history, but something that you actually can move forward to in the future. And that's one of the things that I African-American constitutional consciousness did.
And it's because of that work that we then can look at the 13th, 14th, 15th amendments in their aspirational ideas, in creating an aspiration for full equality, even if it didn't exist on the ground. And that idea is, I think, in a lot of ways, really revolutionary. And how can we then interpret those amendments to account for that? That's one of the big questions.
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I think that constitutional law is currently struggling with which approach to try to take and how can you be sort of sincere and honest with that this week as well.
Yeah, you write at one point in your bio online that you're particularly interested in the intersection of civil society and public sphere theory. And I guess part of what I'm fascinated by about this is that it seems like there's this way in which African American voices in the public sphere are constantly being rediscovered, right? It seems every few years or each generation there are these
moments that remind the mostly white general public about the persistence of racism and the existence of an alternative black critical tradition for interpreting current events, American history, and so on. And these views usually don't get widely circulated in the media or receive the attention that they're due. And it feels like we've relatively recently lived through yet another one of these moments, right?
over the course of the past couple decades or so that you've been doing this research. There was Ta-Nehisi Coates' famous article in the Atlantic about reparations. There was the new Jim Crow, popular documentaries like the 13th, all of which have re-examined these issues of white supremacy, the legacy of Reconstruction, and so on. And so I guess I'm just kind of curious to hear what it's been like for you doing this research and
doing this kind of historical work at the same time that there's also been, once again, this public push to rediscover and re-acknowledge these aspects of our history that usually get brushed under the rug, right? Or at the very least, not widely recognized by the general public.
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Right, well, you mentioned the sort of public sphere theory. And so one of the ways that I've been looking at this and trying to understand this, that a lot of scholars, a lot of what I've done is sort of just read a lot of scholars writing about this stuff to think about it more, is the way in which you have sort of a dominant understanding of your history.
that the dominant culture tends to focus on. And the way you have, it's sometimes called counterpublic discourse, that is the non-dominant communities consistently all through that time speaking to the same issues. And one of the things that you see, and this is true certainly both in African-American history,
and in women's history in the United States is that at any particular time you pick up, there are really important voices. So as I say, Douglass was one of the most popular and well-known speakers and writers and I think the most photographed person in the 19th century America. Incredibly well-known.
And so the things that he was saying and writing about at the time were very well known. sort of everybody in white communities as well as black communities sort of knew about Frederick Douglass and some of the things he was saying. But over time, his importance got diminished, right? So as white historians were writing their history books about that period, Frederick Douglass' voice got
minimized and certainly other African Americans, Henry Hyland Garnett and others who were also well-known, in fact very well-known speakers. Henry Hyland Garnett was the first African American to speak in Congress. He gave a sermon on a Sunday during Reconstruction and he was invited to do that because he was like one of the best known speakers. He was a great speaker and just forgotten.
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after that, right? So at any point in time, you can find this is also true of W.E.B. Du Bois, true of a lot of any period of time, there were prominent African American voices and they were speaking in a tradition that looked back on prior African. So especially African American education. So what you saw in a lot of African American schools was an effort
to try to sustain this history, right? And to have it an active history rather than a suppressed history. But of course, in the dominant historical memory, each time this gets lost. And so it needs to be rediscovered in a sense. So what African-American historians have been doing throughout this period is say, hey, look at this.
We've been talking and thinking about this and we've been living our lives with these issues. And so there's this constant re-looking at these issues. And so I think you're absolutely right that one of the things that you find is that each generation gets to sort of re-experience that history. And this is true both for African-Americans, I think.
are looking back at this history and say, there's some interesting things that I had to focus on. And for white Americans and really all Americans of all races, looking at those experiences and say, well, that actually connects to some of the problems we have now. And so what you see with Michelle Alexander's New Jim Crow or the work of
Upcoming easy votes. And that is such a wonderful that I mean, it's you almost can't call it article because it's a really long piece in the Atlantic on reparations. But he does such incredible work. He's incredibly well read. He's a really good writer and really brings has the ability to bring a lot of that historical knowledge to the present in some important ways, whether you agree with the ultimate answer about how reparations should be implemented or whether.
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should be or what that means, he really is able to bring a lot of that history into a current context. Like you're right, it sort of seems like we're constantly having to redo that work, right? So I think that there's been a progression, especially as African Americans have had more access to becoming the historians and becoming the judges.
and becoming the journalists who are doing this for it to be more fully integrated in the way we think about ourselves. Historians talk about the difference between history and memory. And essentially what we're talking about now is a sort of cultural memory. What's that active way of thinking about the history that we sort of use every day in our everyday lives?
as opposed to the history that is unearthed or studied. The memory is sort of that part of the history, some of which is true history and some of which is myth, that influences the way we think about things, including new policies that come up, questions like, you know, should universities be using affirmative action? All those sorts of things, we bring a sort of active memory.
Yeah.
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that has some of these layers to it, as well as the possibility of using it as a screen.
Yeah, that distinction that you mentioned between memory and history seems kind of similar to what we were just talking about, about constitutional consciousness versus the actual constitution, right? What people have, those murky ideas that people have kind of rattling around in their heads about like, you can't do that to me, I'm an American, you know, like what that means.
Great.
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in a broad sense as opposed to what it narrowly means in terms of what's in the actual Constitution, right?
That's right. That's right. And I mean, that's a really important dialogue to have. know a lot of times I think people as they become lawyers, right? As lawyers, right? It almost makes it sound like lawyers aren't people anymore.
As they slowly transform.
I sort of joke about that with my students about how you are taking this step into a very specialized culture and you're going to start talking about things in a way that seems strange to your family members. So you need to sort of step back at some point and sort of integrate your sort of humanness and your... That's true of any professional education, You sort of enter a profession.
sort of integrate yourself or reintegrate yourself in various ways. But lawyers tend to think sort of almost a, well, you don't know what the Constitution is if you're saying that about it. And well, mean, that can be true. And it's important for people to know what the law, the Constitutional law allows to be argued for us to say or governments to give you.
Speaker 1 (45:35.598)
The reference is actually also important in a democratic society. That is the way people conceive of the Constitution matters to what the Constitution is. And the ways in which, so this is one of the things that like in American legal history, which I teach, I tend to emphasize this a little more, the way in which the Constitution changes over time. Well, those changes to constitutional,
either new amendments, which are the sort of the big changes, but the more consistent changes are when the court changes direction. And the court changes direction because of the changes in constitutional consciousness, right? It's because, you know, that there was a constitutional consciousness that focused on reproductive freedom in the 1960s and 1970s. And then there was a reaction to that, a different constitutional consciousness.
that focused on that that shouldn't be the case, whether it's in fact the pro-life movement emphasizing the possibility that a few years is alive, or whether it's just that states, people should have the right in states to set their own rules, right? However, you want to think about that, the conservative legal movement of the 1980s and beyond, has then produced
the Supreme Court that we currently have, the majority of Supreme Court. That change comes from really a constitutional consciousness shift. It's not because there was any amendment, there hasn't been any amendment that the Constitution adheres on any of this over that time period. It's just the way we, the culture we have about what the Constitution means. And that constitutional consciousness is shifting, it's related to conflicts that we have politically.
it's influenced by a lot of things. And to not take that seriously would be a huge mistake. And so I really try to emphasize both. There's a back and forth between the culture and the law where they each influence each other. And that's one of the things I try to bring out, especially my upper level classes. these groups have a baseline in their first year, you'll get a baseline, OK, just what is it?
Speaker 1 (48:03.822)
to learn what the law is, right? How do you read a case? How do you learn what the basic law is? And then we can start talking about, in a way, sort of reintegrating this idea of, now think of yourself as a member of society and also as a woman.
From the standpoint of thinking about yourself, both as a member of society and as a lawyer, what did you do before you started working at Stetson? I'm curious to know sort of what your path was from graduating with a law degree to becoming a law professor. I'm curious to know a little bit about that.
Sure, well, I I feel like I've been really fortunate. It was a wonderful path. And the law, even though it wasn't necessarily a path, I knew I was going to take in various ways. as an undergraduate, I was interested in continuing on in education in some way. And I knew that I would interested in teaching. And so I was looking at PhD programs as a path to that.
was interested in law. And I thought, well, I may not want to do the teaching path and PhD path. And you're sort of more limited if you take that step. And I thought I could go to law school and still sort of keep some options open, but also have the ability to practice law and earn a living that way. There's lots, even then I knew there were lots of different types of legal jobs that I could do that I probably find.
something that satisfied me and I felt like I was doing good work and that sort of thing. And then I went to a law school in that had a lot of faculty who had degrees in both law and other areas, interdisciplinary faculty. And I was able to start practicing at a law firm in Washington, DC that had had a number of
Speaker 1 (50:12.234)
attorneys who then went into teaching. And so those paths were sort of always both available to me in a sense. And I was fortunate to be able to get that experience. I had a great experience at the law firm. I did a lot of work on a field that's known as administrative law and looking at what the statutes and regulations that
are passed and implemented by federal agencies, by Congress and federal agencies. And so I worked in that because that's common in Washington DC to kind of that type of practice. But I also had an opportunity to work, my law firm paid for me to be, to actually be a lawyer at legal services. And I did that for, I didn't have any obligations at the law firm, all my clients.
with the clients at the legal service office. And we had a sort of rotating program. And that really opened up to me the possibility that both I'd be interested in that type of work if I'm able to do that going forward, but also that that's a type of thing that I would like to be able to teach in law school. So if you're able to do something about the concerns of how the law affects people who
are impoverished. And so I sort of put all those together and said, yeah, I think I'd like to do this, be a law professor. But I also knew that I already do that. One of the things that was to research and write. And so I was able to take some time and write a couple more of the articles and really enjoyed that. Really enjoyed the time thinking about
issues that way, that sort of depth. And even though the writing process can be hard, it's very rewarding when you sort of get to the end of it and see what you've been able to put together. And so at that point, said, yeah, I want to go ahead and try to get a job at a law school. And so I did that. I was a visitor at Mercer for a couple of years. And then I got the job offer at Stetson.
Speaker 1 (52:39.778)
And I've been thrilled, I mean, to me, in lot of ways, it's the ideal job. so I enjoyed practicing. But once I started teaching the area, I realized this is the kind of connection that's coming up and helping sort of open them up to seeing their own abilities in this field. it's really rewarding. It's almost, I know that I'm helping them do that, but I almost feel like I'm just an enjoyable
bystander watching students who are able to open up and realize, that's what this field is. that's interesting. And to see students grow in that way and become lawyers and then go on to have careers where most of them are helping people in various ways. That's a lot of what the lawyer's job is to do that.
I really enjoyed getting the chance to do that. And of course then having the time to write and do other things. And I was able then to develop a course in poverty law based on something that I had wanted to do and develop a course in American legal history. all of that has been very important. One of the things that we as professors really enjoy is both the time we have to think about things.
and the ability to with developing students and then see them grow. yeah, I wouldn't want to do anything else, but I would not, you know, 25 years ago, I wouldn't have had any idea what that path was going to be.
Yeah, I think that's a common experience for a lot of people. Well, thank you so much. I really appreciate you being here today.
Speaker 1 (54:30.456)
Well, Dan, thank you very much. was a pleasure to do this. And thank you. You've had really great questions. I think hopefully people found this to be a helpful and interesting talk.
This has been Real Cases. Thank you for listening. Check back for more episodes about an array of legal topics presented by the Stetson University College of Law.
Learn more at stetson.edu.
Topics: Real Cases Podcast
