This article is the republished version of:A New Pollution ProblemThis article is related to:Mercury Safety Reform in the 21st Century: Advancing the New Framework for Toxic Substances Control

Methods of the New Originalism help us understand what sort of text the Constitution was understood to be when it was adopted. The text refers to itself, and so inquiries into the original understanding of the self-referential phrase “this Constitution” may illuminate the character of the document when it was ratified. Evidence of the usage of the time leads to the unsurprising conclusion that the Constitution of 1787-1789 was understood to be an account of a social compact — a political act — authorizing a new central government. In the original understanding, the Constitution authorized the creation of common-law courts. Judges and justices took their oaths, not to a document or a text, but to the federal, republican form and character (the “constitution”) of the government, and the truths on which it was founded. Judges reviewing the acts of political institutions were to be guided in their decisions, not by turning the aphoristic text of the Constitution into enforceable rules, but by judicial precedents and the maxims of justice and equality implicit in the structure and text of the Constitution, maxims expressed more fully in state constitutions and the Declaration of Independence. This is all familiar history, but it contradicts a premise of the New Originalism, an assumption that the Constitution was an enactment like a statute or contract, a text that judges must apply today according to its fixed terms to resolve disputes. Amendments to the Constitution were enacted as legislation and some, particularly the Fourteenth Amendment, were expected to be interpreted and applied like statutes, but the original Constitution of 1787-1789 was not understood in that way.

Despite the attention given to the Supreme Court’s opinions in *Plessy v. Fergusson* and frequent quotation of Justice Harlan’s dissenting opinion asking the Court to be color-blind, Homer Plessy’s actual claim and his plea are largely forgotten. This forgetfulness is unfortunate, because Homer Plessy speaks to our time with surprising urgency. Plessy did not ask for blindness to the reality of color, he asked the Supreme Court to accept the reality of race and to insist on the inclusion in civil society of every citizen, taking the reality of race and race-prejudice into account.In the 1890s, when Plessy’s suit was in preparation, the backlash against the first Reconstruction was thirty years old, and on the crest of success. Today, we are thirty years into the backlash against the Civil Rights jurisprudence of the Warren Court. The backlash of Homer Plessy’s day created the Jim Crow regime, drawing a color-line around the formerly enslaved with a pretense of equal treatment. Today, the New Jim Crow is accomplished through mass incarceration and mass deportation; the color-line is a wall, and the imprisoned are invisible. We say “Black lives matter” to bring that reality into view, and ask again to erase the line of exclusion. Homer Plessy argued not for equality merely, but for inclusion. “Diversity and inclusion” is a motto for today’s civil rights movement, and only changes in thought and language make it difficult for us to see that it could have been the motto of Homer Plessy’s movement as well. He insisted on an inclusive citizenship for persons of all races; diversity and inclusion. Constitutional law should not be blind to individual circumstances, but it should reject arbitrary color-lines that separate and exclude under a pretense of equal treatment.

This is a brief description for a special number of the American Journal of Legal History, of a legal history course and seminar that I have been developing over the past dozen years. In it we study the historical context of the constitutional system of the USA, looking especially at the idea, and the construction of the idea, of the diverse communities of the United States as a single nation. This is an introductory course, and we address both substance and procedure. We spend a good deal of time talking about the need to establish the facts of a situation or event before framing general ideas about it. I try to explain that this is what lawyers and business people, as well as historians, do: they confront an unedited mass of facts, try to make sense of them, and to form a theory of the case. They then test their ideas against further investigation into facts. Students are required to consult primary materials as much as possible. Our own library has only limited holdings of historical materials, but the libraries of nearby Dartmouth College are open to them and digitized materials are increasingly available on the web. I don’t use a casebook or a treatise, not having found one that is suitable for this seminar, but have assembled materials that are posted on the course's TWEN page, where the students also conduct preliminary discussions of each week's reading assignment.

As the Supreme Court turns its attention once again to the Reconstruction Amendments, in Fisher v. University of Texas and Schuette v. Michigan Coalition to Defend Affirmative Action, the Justices should reconsider the common image of a "color-blind Constitution," a metaphor borrowed from Justice Harlan’s dissent in Plessy v. Ferguson. We usually consider Plessy an Equal-Protection case and Harlan’s dissent an early attempt at equal-protection jurisprudence. Those who brought the suit were not asking for equal protection, however. The perversely ingenious device Southern state used to circumvent the Reconstruction Amendments was a system of laws that created the legal categories "white" and "colored," and authorized private and public agents of government to apply the label "colored" to the people formerly enslaved. The aim was to authorize private discrimination, and was accomplished and maintained for decades by asserting the right of "white" citizens to separate themselves from the former slaves. Creation in this way of superior and subordinate castes violated the core aim of the Reconstruction Amendments, but the labels "white" and "colored" served the purpose for which they were intended, and are still deeply impressed upon civil society. Plessy’s lawyers argued in surprisingly modern terms that equal treatment of superior and subordinated castes was not a remedy, but the evil itself. Their argument should be heard today.

Current “comprehensive immigration reform” proposals would regularize the status of some undocumented immigrants, and provide a path to citizenship. Those would be important reforms, if less than comprehensive. Discussions of immigration reform have not yet adequately addressed the human rights crisis caused by a program of mass deportation of “unlawful” aliens, a program in which state agencies have been enlisted, and that threatens millions of foreign-born Americans. The current mass deportation is ordered by recent federal statutes that require the “removal” from the United States of millions of Americans through procedures that deny them due process and the equal protection of the laws. This deportation program rests on a supposed extra-constitutional “plenary power” of the political branches over the foreign-born, who are deemed to remain essentially foreign, and whose presence in the United States is treated as an ongoing crime, at best a revocable license. None of the current proposals for immigration reform address this deportation program, and a bipartisan proposal threatens to add still more draconian provisions, which will continue to threaten even those who are given a path to citizenship.

Originalist interpretation seeks a definite “public understanding” of Constitutional language at the time of its adoption. The method fails when applied to language that cannot be understood in this way. In 1789, the word “citizen” as used in the Constitution, to take an important example, was a recent American coinage. English dictionaries of the time defined a citizen as a “townsman” or “tradesman;” the Constitution itself helped to give the word its new American sense, a person who had political rights, but this meaning was not well established until years later. At the time of ratification, “citizen” appears to have been understood by many of the Constitution’s draftsmen as signifying a narrow class of property-owning, white men, but the term was left to be further defined in each state, and understandings varied between town and country, slave state and free. Congress in its early years debated the nature and existence of national citizenship, without producing an authoritative definition. Taney’s originalist opinion in Dred Scott confirmed the narrow view of national citizenship originally held by some of the Framers. The Fourteenth Amendment reversed Dred Scott and created a new national citizenship, but the Supreme Court sharply limited the effect of the new language. The core of the Constitution, defining the class of persons who have rights and the rights that they hold, has been constructed piecemeal and continues to change. Originalism in this sphere died with Dred Scott.

State immigration laws aim at the removal of a class of persons, undocumented aliens, through “attrition by enforcement.” Sponsors of the attrition laws claim federal authorization for their efforts, which otherwise may violate the Fourteenth Amendment and federal civil rights laws. The ultimate basis of the claim does not rest on the Constitution, but on a doctrine constructed in the nineteenth century, in the Chinese Exclusion Cases, contemporary with Plessy v. Ferguson. The Supreme Court then accepted a claim that Congress and the President had extra-constitutional power to expel a class of unwanted “aliens,” defined by their race. Congress in 1996 renewed the claim of power to deport even documented immigrants and naturalized citizens, and attempted to authorize state governments to share in the deportation power. State immigrant “attrition by enforcement” laws are the result. In Arizona v. United States, the S.B. 1070 case, the Supreme Court held that portions of the statute, a model for other state immigrant attrition laws, were not authorized but instead were preempted. The remaining state “attrition” schemes are still to be tested against the civil rights laws, however. The Court in modern times has greatly circumscribed the supposed, unlimited power to deport aliens claimed in the Chinese Exclusion Cases, and one hopes Congress and the courts will abandon the dubious doctrines announced in those opinions and do away with “Juan Crow.”

Henry James: A Discussion with Cynthia Ozick, Sheldon Novick, and Susan M. Griffin Eleanor Wachtel* What follows is the transcript of a conversation broadcast on the Canadian Broadcasting Corporation’s Writers & Company on March 29, 1998. The participants were Eleanor Wachtel, host of Writers & Company; Cynthia Ozick, novelist and essayist, who has described her early days as a writer as a (perhaps unfortunate) apprenticeship to Henry James; Sheldon Novick, a biographer of James and scholar-in-residence at Vermont Law School where he teaches constitutional law and history; and Susan M. Griffin, editor of the Henry James Review and author and editor of a number of works on Henry James. Wachtel: There have been movies based on Henry James’s work going back more than fifty years, and we’ve certainly seen a recent cinematic appetite for literary classics, raiding the novels of E. M. Forster and Jane Austen, but now there’s a cluster of movies based on the work of James: The Portrait of a Lady, The Wings of the Dove, Washington Square; there are new versions in the works of The Turn of the Screw and The Golden Bowl. Why James? Why now? Susan Griffin. Griffin: I don’t know that I have an answer to that. I think some of it is simply running out of Jane Austen and moving on to the next writer, frankly. But I guess I would distinguish between the work of someone like Campion or Holland, who are feminist filmmakers who turn to James, I think, specifically for that reason—because of the women characters, because of the depiction of women’s situations—and the sort of general Masterpiece Theatre-type adaptation. Wings of the Dove, it seemed to me, although I enjoyed it, was in a different category than those other two films. It was much lighter, much more commercial. [End Page 317] Ozick: Well, it seems to me the plots are so good. The plots are melodramatic, really, and they’re made for film. Of course, when they’re stripped of being Jamesian, as in The Portrait of a Lady, then there’s nothing left but melodrama and, in the case of that film, ideology. Novick: And there are wonderful parts for women, whether it’s a feminist rendition as in Portrait or in Wings of the Dove. These are wonderful roles for women actors. Griffin: I also think that James is such a visual novelist that he lends himself to adaptations on film or television. In addition to that, his interest all the way through in perception and in the gaze is something that filmmakers can pick up on and use in all kinds of different ways. Now whether they do or not is another question. I think in some cases they do; in others they don’t. Wachtel: The gaze? Griffin: Yes. Well, two versions of that. One is just the whole idea of point of view, the difference between what one character sees and what another character sees. But, in addition, the way in which women are the object of a male gaze, and I certainly think you see that in Portrait and in Wings of the Dove to some extent as well. The way in which the women are constructed by the male perception of them is something I think the filmmakers pick up on. And the power of looking, the power of looking throughout. Ozick: What about our power of looking as viewers? For instance, in the film The Wings of the Dove, we saw graphically what we would never see on a James page. I found that very steamy, and, to my astonishment, since I’m kind of on the side of being faithful to James’s own reticence, I was astounded to see and to feel that it was exactly right, that what was implied was given to us by the filmmaker. Griffin: I thought it was very successful, and when I called it commercial before I didn’t mean that in a negative sense. It was a very erotic film, and, I have to say, I have to confess I guess, that of the final three big novels, The Ambassadors, The...

Realism and Imagination in the Thought of Henry and William James: A Conversation Jonathan Levin and Sheldon M. Novick In the fall of 1996 on the James Family “listserv,” an Internet discussion group, 1 Jonathan Levin and I carried on a brief and lively discussion concerning the influence of Immanuel Kant on Henry James’s “imagination.” The editor of this journal, Susan M. Griffin, suggested we continue our conversation with an eye toward eventual publication, but the discussion lapsed until the spring of 1997 when an observation by Harvey J. Cormier started us up again. Cormier asked for reactions to a hypothesis he was exploring—that Henry and William James shared a perspective which might be characterized as “literary realism.” In his preface to The American, for instance, Henry James had contrasted his realistic fiction with the “romances” written by Hawthorne and others: The balloon of experience is in fact of course tied to the earth, and under that necessity we swing, thanks to a rope of remarkable length, in the more or less commodious car of the imagination; but it is by the rope we know where we are. . . . The art of the romancer is, “for the fun of it,” insidiously to cut the cable. . . . (FW 1064) I posted an enthusiastic concurrence, but commented that for Henry James, at least, realism was of a particular Kantian moral sort. Jonathan Levin responded, and this conversation followed. I hope that Cormier will not mind the use we have made of his informal suggestion, with which we both agree and for which we thank him. Jonathan and I left the bulletin board and carried on our exchange privately. We have only lightly edited our remarks for print.—SMN [End Page 297] Levin: I find myself wondering if your sense of Kant’s influence isn’t too general and wanting especially to trot out some of William James’s amusing dismissals of Kant. To a former student: “Pray contribute no farther (having hereby proved your capacity) to philosophy’s prison-discipline of dragging Kant around like a cannon-ball tied to its ankle.” As James once said, philosophic progress lay “not so much through Kant as round him” (qtd. in Perry 716). By the time William James finally got around to reading Kant, his basic affinities were well established, and those affinities were much more on the side of Locke and Hume than Kant. What matters to me about William’s response to Kant is the extraordinary heat with which he felt it. James admired Kant enough to read him seriously (albeit dismissively), but what he especially could not abide was the neo-Kantian, neo-Hegelian influence among his contemporaries: all forms of what he called absolutism or absolute monism. Kant offended James’s empiricist and pluralist sensibility. And my own sense is that Henry, too, shared William’s distrust, that when he finally acknowledged that he had been unconsciously pragmatizing all along, he was identifying with both the heat and the substance of his brother’s reaction to absolutizing habits of mind. We seem to agree already that Henry is trying to conceptualize a realist imagination, but I am struck by the extent to which this realist imagination is always a matter, for Henry James, of ever finer perceptions of empirical detail. The flush of imagination, to coin a Jamesian phrasing, is always a matter of an infinite accumulation of detailed perceptions, a super-fine discriminating attentiveness that amounts, I think, to an irreducible plurality of perceptions. When James is trying to distinguish “the air of romance” from “the element of reality” in the preface to The American, he runs into the problem of determining just what constitutes the felt difference: what is there, finally, to put one’s finger on, as it were. “It is a question,” he writes, “no doubt, on the painter’s part, very much more of perceived effect, effect after the fact, than of conscious design—though indeed I have ever failed to see how a coherent picture of anything is producible save by a complex of fine measurements” (FW 1061–62). What is striking to me here in the context of our discussion is the reduction...

Henry James’s First Published Work: “Miss Maggie Mitchell in ‘Fanchon the Cricket’” Sheldon M. Novick What follows is the text of Henry James’s first published work, which appeared in a long-vanished Boston newspaper, The Daily Traveller, on January 6, 1863. It has not before been identified as his or reprinted. 1 There is always a special significance to “the first,” so it is particularly interesting that Henry James’s maiden attempt to write for publication was a review of an actor’s performance. There is a very ample literature concerning James’s lifelong interest in the theater, 2 but his special fascination with performance, particularly female performance, as a medium has not been much noted. 3 He seems to have viewed the actor’s art, like the painter’s, as fertile ground for study. His early criticism of the theater, collected in The Scenic Art, is largely concerned with performances. In The Tragic Muse, the scenic art is the art of the performer, and its paradigm is that actors’ company, the Comédie française. He knew many of the leading actors of his day, and formed close personal friendships with Fanny Kemble, Eleanora Duse, and Benoit Constant Coquelin, among others; he was also something of a mentor to young actors like Elizabeth Robins. There is no record of his having taken a similar interest in playwrights or the criticism of plays. James described the writing of the review which follows, in the winter of 1862-63, as the beginning of his career as a writer. He was nineteen, living alone for the first time in a rented room on Winthrop Square, Cambridge, Massachusetts. The Jameses were living in Newport, Rhode Island, at this time, but Henry had removed himself to Cambridge on the pretense of studying law. Rather than law books, however, he was reading collections of Sainte-Beuve’s “Causeries de Lundi” and dreaming of becoming a man of letters. He saw the opening night of Fanchon the Cricket in Boston, and the performance of the lead, Maggie Mitchell, inspired him to write a critical review—his first work written for publication. He described the event in this way: [End Page 300] It was by the operation again of the impulse shaking me up to an expression of what the elder 4 star of the Howard Atheneum had artistically “meant” to me that I first sat down beside my view of the Brighton hills to enrol myself in the band of the fondly hoping and fearfully doubting who count the days after the despatch of manuscripts. I formally addressed myself under the protection, not to say the inspiration, of Winthrop Square to the profession of literature, though nothing would induce me now to name the periodical on whose protracted silence I had thus begun to hang with my own treasures of reserve to match it. (NS 358) The “shy ecstacies” of waiting were not so prolonged as they may have seemed in distant memory; the play opened on January 5, and James’s review appeared in the evening edition of the newspaper the following day. He wrote a letter to Miss Mitchell, probably sending a copy of the published review and identifying it as his own; she answered, enclosing a copy of the acting edition of Fanchon the Cricket, inscribed in a manner sufficiently romantic to make James think of the love affair between the nineteen-year-old hero and an actress that opens Thackeray’s Pendennis (NS 357). Although James devoted several pages to this incident in his memoir, and emphasized its importance as the beginning of his effort to define himself as an American man of letters, he concealed the name of the “periodical” to which he submitted his review, and the essay has not before been identified. The review reprinted below is evidently James’s. It was published anonymously, but it appears to be the piece described by James in his memoir. The youthful style—“characteristic” is already a favorite word—the hint of critical theory, and the gratuitous assertion of familiarity with German forests (he had spent a few weeks with his brothers boarding in the Black Forest three years earlier...