The relationship between United States history and law is complicated — and something distinguished University of Virginia professor G. Edward White has devoted years to examining in his “Law in American History” book series.
Though initially intended to only be a single volume, White said he soon realized he couldn’t properly examine the connections between law and U.S. history in a single book. Instead, he decided to divide the series into three volumes: the first covering the Colonial era to the Civil War; the second from Reconstruction through the 1920s; and the final volume, which was published recently, stretching from 1930 to 2000.
White said he was approached by the Oxford Press to write a book on the history of American law from his perspective, which differs from a popular one that posits that law is a mirror of society.
The generally accepted thought is that issues and events put pressure on the law, forcing it to respond and change, White said. However, through his research, White said he has come to think that the relationship between law and history is more complex than that.
“I think and continue to think that the relationship between the law and society is different than a mirror; sometimes the law is constitutive, or based on established doctrines,” he said. “The courts are not making decisions on a clean slate; they must consider the existing framework.”
In a broader view, White’s volumes have examined key periods and events in American history and how law coalesced and helped to inform these moments and was changed by them, such as detachment of the British-American Colonies, the Civil War and racial slavery and the transformation of the U.S. Supreme Court.
White’s most recent volume examines the more contemporary relationship between law and society, as well as how law education has changed.
In particular, the role of the Supreme Court has changed significantly since the end of the Civil War, White said.
“At the end of the Civil War, the passage of the 13th, 14th 15th Amendments changed the role of the Supreme Court in American life,” he said.
The court has become highly politicized now, White said, in part because of the nomination process. In the past, it was not uncommon for an appointee to the Supreme Court not to have lower court experience.
However, in the last 40 years, White said a shift has occurred.
The majority of appointees having served in lower courts,
“This allows for a more predictable appointment,” he said. “You can look at their record and make certain kind of perceptions about their politics.”
This has led to an unfortunate aura of politicization, White said, and, in some ways, a change to how to Supreme Court operates. Judges are no longer impartial legal scientists, but something more akin to a legislator, he said.
In addition to his three “Law in American History” volumes, White has published 17 books and has won various awards, according to his UVa profile.
These awards include final listing for the Pulitzer Prize in history; the Silver Gavel Award from the American Bar Association; the James Willard Hurst Prize from the Law & Society Association; the Littleton-Griswold Prize from the American Historical Association; the Scribes Award; and the Association of American Law Schools’ Triennial Coif Award.