Sunflower Justice: A New History of the Kansas Supreme Court

Preface

Preface Legal history has too often been left to lawyers to define, and one result is the paucity of works on local and state legal topics that appeared to many to be “unimportant.” American legal historiography, until the recent development of “history from the bottom up,” was devoted largely to the national government, where “the action took place.” Political scientists, historians, economists, and sociologists studied the Constitution from their particular vantage points and produced studies with an appeal limited primarily to other members of their fields. “As a consequence ,” Francis Heller concluded, the US Supreme Court’s work “was over-evaluated but seldom illuminated.”¹ State and local legal history in the nineteenth century was neglected in part because historians do not have the legal skills to read and to interpret technical documents and complicated legal jargon. One can study the relationship to economic forces or the concept of legal thought or an aspect of group activity, but the rigors of the historical process subject the aspects of these disciplines and others to its peculiar demands. As a result, only the histories of the high courts in Florida, Massachusetts , Missouri, Tennessee, Virginia, Nebraska, and Washington have been written, although other similar studies are now under way. This is unfortunate, because it is here that the “the meaningful, everyday judicial opinions” are dispensed.² Michael H. Hoeflick asserts that “the work that has been produced [in Kansas] primarily has been written by lawyers writing for other lawyers ,” and he justly laments the fact that much of the sources for writing this study “have been destroyed or lost.” His observations apply only x Preface tangentially to the Kansas Supreme Court, as he is referring to the disappearance of attorneys’ papers and similar legal documents. Most of the vital evidence on the court is available, providing enough material for at least a sketchy history of the institution, and that is what I have attempted to do in this volume. It is not a legal history of Kansas, nor is it a definitive history of the court and its work. It is a brief overview, conveniently located in one volume, of the judges and the decisions they wrote that helped mold Kansas legal history within the context of Kansas constitutional, political, economic, legal, and social history. I hope the book will encourage future scholars to expand and build on this foundation. To try to be definitive would be foolhardy and would require the cooperation of many scholars and the writing of many volumes . Both of these options appear unfeasible at this time.³ The great twentieth-century legal scholar James Willard Hurst encouraged his students to understand “how the law has really worked in social experience.” Yet another scholar has stressed the point that legal historians have insisted on “a radical separation between law and politics .” I reject this latter distinction and support Hurst’s injunction because this subject is a specialized form of political history. Politicians shape the law and use it for whatever type of social and economic policies their constituents want their government to pursue. Judges are citizens with their own political, social, and economic predilections, and these often, consciously or subconsciously, influence the writing of their decisions.4 From the territorial period to 1990, the supreme court produced 245 volumes of opinions. Each volume contains approximately 250 decisions . How does the historian master such productivity? How does one organize and illuminate this mass of legal thought and development? How can the major trends be condensed so that an author can write, and readers can absorb, with any confidence of comprehension? There are many approaches, of course, and everyone who researches state supreme court histories will follow a different scheme. I have elected to choose the cases that best demonstrate the historical, social, legal, political , and economic trends of the period covered in each chapter. Preface xi During the latter half of the twentieth century, for instance, a great change came about in our judicial system labeled “legal liberalism.” This involved the concept that courts in general could, and should, be used to bring about social change, and it originated particularly in the “Brandeis Brief,” developed in support of the Oregon law limiting working hours for women. Louis Brandeis, “the people’s attorney,” followed the unusual approach of writing a couple of pages of legal precedent for his brief and over one hundred pages of statistics demonstrating the impact of long hours...