Law and History Review

Forum: Legal History and Legislatures

The People's Privilege: The Franking Privilege, Constituent Correspondence, and Political Representation in Mid-Nineteenth Century America

Roman J. Hoyos 

In his book The Dignity of Legislation, Jeremy Waldron bemoans the lack of attention legal philosophers have paid to legislatures and legislation. This oversight, Waldron suggests, has impoverished our understanding of legislatures as legal institutions, and has led jurisprudes to see only the “indignity of legislation.” Legal historians have hardly been more attentive, preferring to leave legislatures to political historians and political scientists. So although we have myriad studies of roll call votes, for example, we lack a genuine understanding of the legal history of legislatures or legislation. Our failure to appreciate the role of legislatures and legislation is especially characteristic of studies of the pre-Civil War period, a period in which the state has been famously described as a “state of courts and parties,” and characterized by the legislature's “decline of authority.” Even those who have uncovered a rich governmental theory and practice in the nineteenth century have focused more on courts and statutory interpretation. Willard Hurst criticized this inattention to the legal history of legislatures years ago, noting the “tendency to identify legal history with the history of courts and court-made doctrine.” Our court-centered approach has left us with only a partial understanding of the role of law in American history. “In order to see law in its relations to the society as a whole,” Hurst continued, “one must appraise all formal and informal aspects of political organized power— observe the functions of all agencies (legislative, executive, administrative, or judicial) and take account of the interplay of such agencies with voters and nonvoters, lobbyists and interest groups, politicians and political parties. This definition overruns traditional boundaries dividing the study of law from study of political history, political science, and sociology.”


Roman J. Hoyos is an Associate Professor of Law at Southwestern Law School. He thanks David Tanenhaus, Kathleen Conzen, Bill Novak, Amy Stanley, Dan Hamilton, Richard John, Al Brophy, Jamie Boyle, Guy Charles, Thom Bahde, Gautham Rao, Kyle Volk, the participants in the Political History Workshop at the University of Chicago, and the anonymous reviewers for Law and History Review for their wonderful comments, criticisms, and suggestions. He also thanks the staff at the Special Collections Research Center at the University of Chicago's Regenstein Library for their help in guiding him through the Stephen Douglas Papers, and for permission to use the collection.