In 2015, the city council of Birmingham, Alabama enacted an ordinance establishing a local minimum wage of $10.10 an hour-a significant raise for the city's low-income workers from the federal floor of $7.25. (1) The ordinance proved short-lived. Within months, the Alabama legislature had passed and the governor signed statewide preemption legislation nullifying all local wage regulations. Marnika Lewis, a twenty-three-year-old mother and employee of the Moe's Southwest Grill burrito chain, is among several plaintiffs challenging the Alabama preemption statute, HB 174, as unconstitutional and racially discriminatory. (2) "[T]he legislature and the governor," Lewis complains, have "stolen my raise." (3)
Lewis's legal claims rest upon a deeper set of claims about Alabama history. In the plaintiffs' account, HB 174 represents the latest iteration of a recurring pattern in which every time local black majorities assert political or economic power, Alabama's statewide white power structure reacts with hostility. The facts supporting this account include the following: After decades of white flight to its suburbs, the city of Birmingham is 73% black. (4) Its city council is almost entirely black, and its population of low-wage workers disproportionately black. (5) Conversely, the state governor is white, the state legislature predominantly white, and the statewide population about 69% white. (6) In both houses of the state legislature, the vote on HB 174 proceeded along almost exactly partisan and largely racial lines. (7) Every black legislator opposed it. (8) Alabama's state constitution-adopted in 1901-authorizes state-level overrides of local policymaking in a variety of contexts precisely because its Jim Crow-era framers feared empowering black local majorities. (9)
The countervailing account, offered by the state in defending HB 174 and accepted by the federal district judge who dismissed the complaint, does not deny Alabama's history of white supremacy but defines that history as irrelevant to this more recent episode of "run-of-the-mill" economic policymaking. (10) On this account, the Birmingham ordinance exposed a heretofore unrecognized gap in Alabama law, a gap that required quick mending in order to "maintain stability in the State's business climate." (11) It was purely incidental that the state legislature happened to be mostly white and the Birmingham city council mostly black. In its motion to dismiss, the state explained that HB 174 could not constitute a vestige of Jim Crow because the dictionary defines a "vestige" as "a remaining bit . . . of something formerly present," whereas this legislation "was enacted in 2016, modeled after other States' laws, endorsed in judicial opinions, and supported by social-science findings." (12)
That a dispute about Alabama labor law could transform into a dispute about how heavily to weigh the burdens of Alabama history exemplifies one of Bob Gordon's central insights: the recurrent tendency of American lawyers to appeal to the past as both "authority" and "social critic." (13) In recent years, increasingly convoluted and self-referential debates about originalism have dominated the scholarly conversation about the relationship between history and law. But as Gordon has long recognized, explicit exegesis of past texts and practices is neither the only nor necessarily the most consequential way in which history informs legal argument. Lawyers and jurists are constantly making more diffuse appeals to the past's authority, draping their legal claims around the scaffolding of imagined metanarratives about how history unfolds and the place of lawyers and jurists within that unfolding. History is ever-present within the law, Gordon writes, in the form of "mostly implicit, taken-for-granted assumptions about the relation of the present to the past, about what is or should be permanent or unchanging, and about how we have changed and the general directions of change." (14)
In a series of lectures given in the 1990s and now brought together in Taming...