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Burying Mcculloch?, David S. Schwartz
Burying Mcculloch?, David S. Schwartz
Arkansas Law Review
Kurt Lash is a superb constitutional historian trapped inside the body of an originalist. He is one of the few originalists bold enough to acknowledge that McCulloch v. Maryland needs to be ejected from the (conservative) originalist canon of great constitutional cases. While he attributes to me an intention “not to praise the mythological McCulloch, but to bury it,” it is Lash who seeks to bury McCulloch, which he views as a fraudulent “story of our constitutional origins.”
Mcculloch V. Madison: John Marshall's Effort To Bury Madisonian Federalism, Kurt Lash
Mcculloch V. Madison: John Marshall's Effort To Bury Madisonian Federalism, Kurt Lash
Arkansas Law Review
In his engaging and provocative new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz challenges McCulloch’s canonical status as a foundation stone in the building of American constitutional law. According to Schwartz, the fortunes of McCulloch ebbed and flowed depending on the politics of the day and the ideological commitments of Supreme Court justices. Judicial reliance on the case might disappear for a generation only to suddenly reappear in the next. If McCulloch v. Maryland enjoys pride of place in contemporary courses on constitutional law, Schwartz argues, then this …
Does Importance Equal Greatness? Reflections On John Marshall And Mcculloch V. Maryland, Sanford Levinson
Does Importance Equal Greatness? Reflections On John Marshall And Mcculloch V. Maryland, Sanford Levinson
Arkansas Law Review
David S. Schwartz’s The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, is a truly excellent book, for which I was happy to contribute the following blurb appearing on the back jacket: "David Schwartz has written an indispensable study of thesingle most important Supreme Court case in the canon. As such, he delineates not only the meaning and importance of the case in 1819, but also the use made of it over the next two centuries as it became a central myth and symbol of the very meaning of American constitutionalism.”
Without Personhood: The Missing Point Of Slaves In Missouri's Emancipation-By-Residency Freedom Suit Jurisprudence, 1824-1837, Jacob Alfred Brandler
Without Personhood: The Missing Point Of Slaves In Missouri's Emancipation-By-Residency Freedom Suit Jurisprudence, 1824-1837, Jacob Alfred Brandler
MSU Graduate Theses
From 1824 to 1837, the Supreme Court of Missouri developed a sophisticated caselaw establishing emancipation-by-residency—where a Missouri court could liberate an enslaved petitioner because of their residence in a free jurisdiction—as a basis of freedom suits. In 1852, however, the Court undermined the precedential value of those decisions and dismantled this basis when deciding Dred Scott’s case, Scott v. Emerson. Scholarship on Missouri’s freedom suits has highlighted how partisanship and the political atmosphere in Missouri as well as across the nation contributed to this outcome. This study adds to the historiography how the previous caselaw itself predisposed the result; …
Rules, Tricks And Emancipation, Jessie Allen
Rules, Tricks And Emancipation, Jessie Allen
Book Chapters
Rules and tricks are generally seen as different things. Rules produce order and control; tricks produce chaos. Rules help us predict how things will work out. Tricks are deceptive and transgressive, built to surprise us and confound our expectations in ways that can be entertaining or devastating. But rules can be tricky. General prohibitions and prescriptions generate surprising results in particular contexts. In some situations, a rule produces results that seem far from what the rule makers expected and antagonistic to the interests the rule is understood to promote. This contradictory aspect of rules is usually framed as a downside …