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Faculty
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Pamela Brandwein’s research focuses on constitutional law and politics, constitutional development, and civil rights. She is also particularly interested in the rise and impact of distorted constitutional knowledge about Reconstruction. She is author of the award-winning book, Reconstructing Reconstruction (Duke University Press, 1999), which examined the institutional establishment of an error-ridden account of Fourteenth Amendment history and the way this account rendered Warren Court rights expansions vulnerable to the charge that they were the result of “politics, not law.” In general, her work is situated at the intersection of law, history, American political development, and the sociology of knowledge. She is currently working on a book that rethinks conventional wisdom about the Supreme Court’s settlement of the great debates involving race and rights opened by the Civil War. This book offers the first major legal and historical rethinking of the Fourteenth Amendment doctrine of “state action,” the rule that puts merely private conduct outside the scope of the Amendment. By recovering the post-Civil War concept of “state neglect” and by linking it to an emerging revisionist literature on political development, the book offers a new interpretation of the landmark Civil Rights Cases (1883). The result is a transformation in the scope of federal power to protect rights, as well as a revision of the standard view that state action doctrine represented a definitive abandonment of the freedmen to Southern “home rule.” The book’s revisionist account of the developmental path of civil rights law also illuminates the formation of a key feature of the modern American state: an expansive private sphere outside the reach of constitutional limitations. Tracing the institutional developments that gave rise to an anachronistic perspective on the Civil Rights Cases, the book shows how the radical potential of the state neglect concept – which embodied a broader view of state responsibility than we have today – was largely erased. The impacts of this erasure on the development of constitutional law, the writing of constitutional history, and the struggle over race are drawn in detail. So, too, are the contemporary stakes that attach to this analysis: the retrenching federalism decisions of the Rehnquist Court take for granted a more cramped vision of state responsibility than the state action cases actually demand. Selected Publications
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