John D. Bessler, University of Baltimore School of Law, has poste

 

The U.S. Supreme Court and legal scholars have long traced the origins of the Eighth Amendment's prohibition against "cruel and unusual punishments" to the English Declaration of Rights, codified as the English Bill of Rights (1689). The English Declaration of Rights recited that, in King James II's reign, "illegal and cruel punishments" had been "inflicted," with its tenth clause then declaring in hortatory fashion: "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The prohibitions against excessive bail and excessive fines and the final phrase-"nor cruel and unusual punishments inflicted"-were later incorporated into the Virginia Declaration of Rights (1776), various state constitutions, and the U.S. Constitution's Eighth Amendment. One legal scholar, Anthony Granucci, once described the wording of the English bar on "cruel and unusual punishments" as the product of "chance and sloppy draftsmanship," concluding that American lawmakers, in adopting the Eighth Amendment, misinterpreted "the intent of the drafters of the English Bill of Rights." The Eighth Amendment famously reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

The U.S. Supreme Court and Eighth Amendment scholars have misidentified the English Declaration of Rights as the first appearance of the "cruel and unusual punishments" language, with Justice Thurgood Marshall, relying on Granucci's Eighth Amendment scholarship, observing that the use of "unusual" in the English Declaration of Rights "appears to be inadvertent." This Article demonstrates that the conventional account of the origins of the "cruel and unusual punishments" phraseology-spelled "cruell and unusuall punishments" in some early English sources-is woefully incomplete. The standard account of how that terminology first emerged during the Revolution of 1688-1689, popularly known as the "Glorious Revolution," fails to consider long-forgotten, far earlier uses of the cruel and unusual punishments terminology. Those usages stretch back as far as the early 1600s, during the reign of King James I, though they initially appear in non-legal contexts (i.e., in a history of Venice translated from French into English and published in 1612; in English courtier and poet George Wither's satire, Abuses Stript, and Whipt, first published in the early 1610s; and in 1642 Irish Catholic Remonstrances from Ulster following an Irish rising in 1641). Because of the terminology's prior appearances in those places, the use of the cruel and unusual punishments phraseology in the English Declaration of Rights was almost certainly neither inadvertent nor the product of sloppy drafting.

[The June 2025 issue of the Journal of American History is chock full of legal history.

 M. Scott Heerman examines the contours of race, citizenship, and legal personhood abroad during the 1850s. He examines two freedom suits filed by John Lytle and Ben Newton, illegally enslaved African Americans in Cuba, and unpacks State Department policy covering rights to citizenship in those cases and others. His article shows that consular agents on the ground in Havana and high-ranking State Department officials in Washington, D.C., maintained a two-tiered system of protection that distinguished between granting legal protections based on birthright and conferring full rights afforded to citizens.

What is the place of law in the history of anti-immigrant violence in the United States? Seeking an answer, Hardeep Dhillon historicizes several attacks on immigrants from India between 1907 and 1910. She argues that the lack of protection or justice for immigrant communities in the face of mob violence is not a simple history of law gone wrong or even a history of discriminatory law, but a history of anti-immigrant fervor and impunity structured through the law. Her article reveals how laws on the books and laws in practice shaped both the violence immigrants experienced and possible forms of redress.

Despite the wealth of scholarship on mortgage discrimination, comparatively little is known about how redlining affected rental housing. During World War II, the Federal Housing Administration (FHA) began underwriting new apartments for defense workers and war veterans. Brent Cebul and Michael R. Glass examine how developers such as Fred Trump and William Levitt abused FHA insurance programs by inflating their costs and reaping excess profits in a tactic known as “mortgaging out.” Drawing upon their original database of FHA-insured apartments, Cebul and Glass illuminate how developers not only deepened racial segregation but also transformed the landscape of rental housing across metropolitan America.

As historians debate the causes of the decline of American democracy—the backlash against civil rights, income inequality, changing media—the Iran-Contra scandal of the Ronald Reagan–George H. W. Bush years, over trading arms with Iran and funding rebels in Central America, never figures in this discussion. Iran-Contra has receded from history, regarded as a minor speed bump in the late Cold War. Reinterpreting the fiasco as an accelerant in the decay of U.S. democracy, Alan McPherson argues that the 1987 televised congressional hearings highlighted several major disparities in how Democrats and Republicans understood norms: Democrats warned of a broad assault on democracy, while Republicans dismissed the disturbing events as mere means to foreign policy ends. Unlike during the Watergate scandal, no one paid a price for Iran-Contra, and the behaviors worsened.

Job Posting: Berkeley Law's Jurisprudence & Social Policy Program Seeks Applications

 The Jurisprudence and Social Policy (JSP) PhD Program in the School of Law at the University of California, Berkeley invites entry-level and early-career lateral applicants for a full-time, tenure-track faculty position focused on law and history. We seek applications from scholars whose primary research focus is law and history in the United States, and also from those engaged in comparative analysis in which American law and history is a component. We seek a scholar versed in qualitative and/or quantitative research methods and theories, and ready to enter into the intellectual life of a unique multidisciplinary PhD Program. Within the broad ambit of law and history our search is open as to the field and/or period of specialization. However, we are particularly interested in candidates whose research relates to race and inequality.

The JSP Program attracts a diverse student body with a variety of experiences before graduate school. The JSP Program is committed to methodological pluralism and encourages scholars who are willing and able to mentor graduate and undergraduate students whose research uses a range of methods. JSP faculty members also teach in Berkeley’s interdisciplinary undergraduate Legal Studies major, which operates under the auspices of JSP.

The JSP Program is committed to addressing the family needs of faculty, including dual career couples and single parents. We are also interested in candidates who have had non-traditional career paths or who have taken time off for family reasons, or who have achieved excellence in careers outside academia. For information about potential relocation to Berkeley, or career needs of accompanying partners and spouses.

The law school strives to educate responsible, effective, and forward-thinking advocates who serve the public through legal practice, public policy, academic scholarship, and related fields. In doing so, the school addresses some of society’s most pressing challenges by leveraging its strengths in teaching and research to improve law, policy, and public institutions. At the heart of Berkeley Law’s public mission is a commitment to access, affordability, and empowering students from all backgrounds to pursue impactful careers across a wide range of professional paths. For more information, please visit: 

Maureen E. Brady, Harvard Law School, has posted

 

Historians and legal scholars alike have previously noted that the meaning of "public use" began to change in the nineteenth century, continuing into the twentieth. In the hands of some state courts, "public use" expanded from an approach dependent on "use by the public" to one that at least occasionally tolerated "use for the public benefit." This shift in meaning laid the groundwork for Berman v. Parker, the urban renewal decision from the United States Supreme Court that provided support for the broad reading of "public use" in the 2005 decision Kelo v. City of New London. 

In this Essay, I focus my attention on one of the vectors for the emergence of "public benefit" conceptions of the public use requirement: state constitutional text itself. In the nineteenth century, several states specifically authorized takings for private use in their state constitutions, usually to benefit local and economically critical industries. In other states, this approach was explicitly rejected. 

Although these private-use provisions have been noted by other scholars, this Essay collects and examines them as a group, including the lessons about "public use" that one might glean from the fruitful and fascinating debates that these provisions engendered among nineteenth-century lawyers at constitutional conventions. The conventions are an important site for understanding the logic underlying "public benefit" conceptions of "public use." And they might shape the future of "public use" doctrine by offering historical grounding for alternative conceptions of the line between permissible and impermissible takings, whether as a matter of federal or state constitutional law.