The Law's Conscience: Equitable Constitutionalism in America

The Law's Conscience: Equitable Constitutionalism in America

The Law's Conscience: Equitable Constitutionalism in America

The Law's Conscience: Equitable Constitutionalism in America

Synopsis

The Law's Conscience is a history of equity in Anglo-American juris-prudence from the inception of the chancellor's court in medieval England to the recent civil rights and affirmative action decisions of the United States Supreme Court. Peter Hoffer argues that equity embodies a way of looking at law, including constitutions, based on ideas of mutual fairness, public trusteeship, and equal protection. His central theme is the tension between the ideal of equity and the actual availability of equitable remedies.

Hoffer examines this tension in the trusteeship constitutionalism of John Locke and Thomas Jefferson; the incorporation of equity in the first American constitutions; the antebellum controversy over slavery; the fortunes of the Freedmen's Bureau after the Civil War; the emergence of the doctrine of "Balance of Equity" in twentieth-century public-interest law; and the desegregation and reverse discrimination cases of the past thirty-five years. Brown v. Board of Education (1954) was the most important equity suit in American history, and Hoffer begins and ends his book with a new interpretation of its lessons.

Excerpt

Professionally written history cannot be objective in the manner of experimental science, but fair-minded history -- a fair hearing to evidence and argument that opposes one's own tentative conclusions -- is the hallmark of the scholar. In the language of the law, such fair- mindedness is the standard to which the rule of objectivity refers. I use the legal analogy because legal history has sometimes failed to sustain this standard of fairness. When professional lawyers use history in aid of their client's cause, they are wont to replace historical context with ellipses. Their profession's code of ethics requires acknowledgment of opposing arguments and citation of opposing authorities, but the whole point of a legal brief, including its historical materials, is to sustain a claim. Consequently, adversarial legal scholarship is often denigrated as "law-office history" by professional historians.

Were this obloquy confined to the work product of practicing counsel, it would not be prejudicial to the enterprise of legal history. Unfortunately, on occasion historians, law professors, and judges working in the penumbras of law-office history also transgress the standard of fair-mindedness. Historians are regularly employed as expert witnesses, for example, in disputes over the discriminatory practices of great corporations. These scholars advance their side's case. Constitutional writers more interested in providing evidence for a point of law than for scholarly exploration of that point also may violate the standard of fair-mindedness. Over the past three decades, the Fourteenth Amendment seems to have attracted a goodly portion of law-office history. Judges seeking to support an opinion already prepared have allowed outdated and questionable works to serve as citations. There are valid controversies about the history of much of the Constitution; a fair-minded scholarship re-

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