In the 1970s and 1980s some of the most exciting work in legal history challenged late-nineteenth-century law as following a false formalism, only pretending to reason from abstract principles isolated from life's realities. Others took a different view, but these scholars insisted that law should be seen as political or economically determined rather than emerging from principle. Law was no more than a system of argumentative exchange. “Of dialectics there is no end,” one observed. In this view, principled law served only as a cover for economic avarice and political strength. If law merely reflects power, then there is really little reason for historians to study law or constitutionalism, and the recent migration of the historical study of constitutionalism, away from history departments and into law schools is well placed.

During the 1880s Irish terrorism posed significant difficulties for American international relations. State Department officials at home and abroad monitored and assessed the activities and ideologies of many radical groups throughout Europe, but few were more burdensome and frustrating than Irish-American dynamiters. Recurrent threats to life and property in the United Kingdom and allegations of ties to American institutions and citizens eventually prompted American diplomats to articulate an aversion to terrorism. State Department officials also faulted the British colonial system for creating an environment that nurtured violent resistance and for using counter-terrorist measures believed to be repressive and largely ineffective. The diplomatic complications created by Irish nationalists eventually gave way to a mutual Anglo-American ideological repulsion to terrorism.

Something was menacing the South during the Progressive Era. Southern physicians located the threat in the “germ plasm,” the genes, of the region's inhabitants. Writing in a now-infamous 1893 “open letter” published in the Virginia Medical Monthly, Hunter Holmes McGuire, a Richmond physician and president of the American Medical Association, asked for “some scientific explanation of the sexual perversion in the negro of the present day.” McGuire's correspondent, Chicago physician G. Frank Lydston, replied that African-American men raped white women because of “[h]ereditary influences descending from the uncivilized ancestors of our negroes.” Lydston's solution to this problem was not lynching, but surgical castration which “prevents the criminal from perpetuating his kind.” Eight years later in Alabama, Dr. John E. Purdon opined, “It is a proved fact of experience that the inveterate criminal tends to propagates a race of criminals, and that the undeveloped or degraded nerve-tissue will duplicate itself in the next generation.” Dr. Purdon then declared, “Emasculation is the simplest and most perfect plan that can be adopted to secure the perfection of the race.” Twenty-three years later, in 1924, Harry Hamilton Laughlin testified in support of a Virginia law providing for the eugenic sterilization of the “shiftless, ignorant, and worthless class of anti-social whites of the South,” who allegedly created social problems for “normal” people. The multiplication of these “defective delinquents,” Laughlin and Virginia officials claimed, could only be controlled by restricting their procreation.