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Full-Text Articles in Legal History
A New Philosophy In The Supreme Court, Robert M. Sanger
A New Philosophy In The Supreme Court, Robert M. Sanger
Robert M. Sanger
Formal And Informal Amendment Of The United States Constitution, Richard S. Kay
Formal And Informal Amendment Of The United States Constitution, Richard S. Kay
Richard Kay
Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey
Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey
Martha T. McCluskey
For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism. By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank …
Finding The Sovereign In Sovereign Immunity: Lessons From Bodin, Hobbes, And Rousseau, David Schraub
Finding The Sovereign In Sovereign Immunity: Lessons From Bodin, Hobbes, And Rousseau, David Schraub
David Schraub
Pre-Constitutional Law And Constitutions: Spanish Colonial Law And The Constitution Of Cádiz, M C. Mirow
Pre-Constitutional Law And Constitutions: Spanish Colonial Law And The Constitution Of Cádiz, M C. Mirow
M. C. Mirow
This article contributes to the intellectual and legal history of this constitutional document. It also provides a close study of how pre-constitutional laws are employed in writing constitutions. It examines the way Spanish colonial law, known as "derecho indiano" in Spanish, was used in the process of drafting the Constitution and particularly the way these constitutional activities and provisions related to the Americas. The article asserts that this pre-constitutional law was used in three distinct ways: as general knowledge related to the Americas and their institutions; as a source for providing a particular answer to a specific legal question; and …
Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow
Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow
M. C. Mirow
In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the United States. Using this surprising fact as a central example, this article makes several important contributions to the field of comparative constitutional law. The work demonstrates that through constitutional migration, novel readings of constitutional sources can arise in foreign fora. In an era when the United States Supreme Court may be accused of parochialism in its constitutional analysis, the article addresses the current controversy …
The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt
The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt
Mark P Nevitt
Climate change is the world’s greatest environmental threat. And it is increasingly understood as a threat to domestic and international peace and security. In recognition of this threat, the President has taken the initiative to prepare for climate change’s impact – in some cases drawing sharp objections from Congress. While both the President and Congress have certain constitutional authorities to address the national security threat posed by climate change, the precise contours of their overlapping powers are unclear. As Commander in Chief, the President has the constitutional authority to repel sudden attacks and take care that the laws are faithfully …
The Emergence Of Classical American Patent Law, Herbert Hovenkamp
The Emergence Of Classical American Patent Law, Herbert Hovenkamp
Herbert Hovenkamp
The Emergence of Classical Patent Law
Abstract
One enduring historical debate concerns whether the American Constitution was intended to be "classical" -- referring to a theory of statecraft that maximizes the role of private markets and minimizes the role of government in economic affairs. The most central and powerful proposition of classical constitutionalism is that the government's role in economic development should be minimal. First, private rights in property and contract exist prior to any community needs for development. Second, if a particular project is worthwhile the market itself will make it occur. Third, when the government attempts to induce …
What The Constitution Means By “Duties, Imposts, And Excises”—And “Taxes” (Direct Or Otherwise), Robert G. Natelson
What The Constitution Means By “Duties, Imposts, And Excises”—And “Taxes” (Direct Or Otherwise), Robert G. Natelson
Robert G. Natelson
This Article recreates the original definitions of the U.S. Constitution’s terms “tax,” “direct tax,” “duty,” “impost,” “excise,” and “tonnage.” It draws on a greater range of Founding-Era sources than accessed heretofore, including eighteenth-century treatises, tax statutes, and literary source, and it corrects several errors made by courts and previous commentators. It concludes that the distinction between direct and indirect taxes was widely understood during the Founding Era, and that the term “direct tax” was more expansive than commonly realized. The Article identifies the reasons the Constitution required that direct taxes be apportioned among the states by population. It concludes that …
Justice Lewis F. Powell's Baffling Vote In Roe V. Wade, Samuel W. Calhoun
Justice Lewis F. Powell's Baffling Vote In Roe V. Wade, Samuel W. Calhoun
Samuel W. Calhoun
No abstract provided.
Does “The Freedom Of The Press” Include A Right To Anonymity? The Original Meaning, Robert G. Natelson
Does “The Freedom Of The Press” Include A Right To Anonymity? The Original Meaning, Robert G. Natelson
Robert G. Natelson
This Article examines relevant evidence to determine whether, as some have argued, the original legal force of the First Amendment’s “freedom of the press” included a per se right to anonymous authorship. The Article concludes that, except in cases in which freedom of the press had been abused, it did. Thus, from an originalist point of view, Supreme Court cases such as Buckley v. Valeo and Citizens United v. Federal Election Commission, which upheld statutes requiring disclosure of donors to political advertising, were erroneously decided.
Riley V. California: Privacy Still Matters, But How Much And In What Contexts?, Adam Lamparello, Charles Maclean
Riley V. California: Privacy Still Matters, But How Much And In What Contexts?, Adam Lamparello, Charles Maclean
Adam Lamparello
Private information is no longer stored only in homes or other areas traditionally protected from warrantless intrusion. The private lives of many citizens are contained in a digital device no larger than the palm of their hand—and carried in public places. But that does not make the data within a cell phone any less private, just as the dialing of a phone number does not voluntarily waive an individual’s right to keep their call log or location private. Remember that we are not talking about individuals suspected of committing violent crimes. The Government is recording the calls and locations of …
Restoring Constitutional Equilibrium, Adam Lamparello
Restoring Constitutional Equilibrium, Adam Lamparello
Adam Lamparello
In areas such as the Fourteenth Amendment, the Supreme Court's lack of institutional restraint has affected citizens of every political persuasion. In Bush v. Gore, the Florida Supreme Court’s recount order was blocked. ‘Liberals,’ lost. In Roe v. Wade, the Court required state legislatures to allow most abortions in the first trimester. ‘Conservatives’ lost. In Clinton v. City of New York and Citizens United v. Federal Election Commission, the coordinate branch’s attempt to ensure a more efficient and fairer government was thwarted. Average citizens lost. The problem is not a liberal or conservative one, whatever those words mean. It is …
Free Will Paradigms, Kent Greenfield
Free Will Paradigms, Kent Greenfield
Kent Greenfield
One of the iconic issues in American law and politics is the question of free will—sometimes known as agency, choice, or autonomy, or the absence of duress, coercion, and compulsion. In politics, whether one is liberal or conservative, we balk at government limitations on choice and fight those limitations with legal arguments about rights and political rhetoric about freedom. Liberals demand access to abortions, want the ability to purchase medical marijuana, and bristle at pat-down searches before boarding a plane. Conservatives dislike requirements to buy health insurance or pay taxes, rail against limits on gun ownership and school prayer, and …
Images In/Of Law, Jessica M. Silbey
Images In/Of Law, Jessica M. Silbey
Jessica Silbey
The proliferation of images in and of law lends itself to surprisingly complex problems of epistemology and power. Understanding through images is innate; most of us easily understand images without thinking. But arriving at mutually agreeable understandings of images is also difficult. Translating images into shared words leads to multiple problems inherent in translation and that pose problems for justice. Despite our saturated imagistic culture, we have not established methods to pursue that translation process with confidence. This article explains how images are intuitively understood and yet collectively inscrutable, posing unique problems for resolving legal conflicts that demand common and …
Invisible Federalism And The Electoral College, Derek Muller
Invisible Federalism And The Electoral College, Derek Muller
Derek T. Muller
What role do States have when the Electoral College disappears? With the enactment of the National Popular Vote on the horizon and an imminent presidential election in which a nationwide popular vote determines the winner, States would continue to do what they have done for hundreds of years — administer elections. The Constitution empowers States to decide who votes for president, and States choose who qualifies to vote based on factors like age or felon status. This power of States, a kind of “invisible federalism,” is all but ignored in Electoral College reform efforts. In fact, the power of the …
The Long And Winding Road From Monroe To Connick, Sheldon Nahmod
The Long And Winding Road From Monroe To Connick, Sheldon Nahmod
Sheldon Nahmod
In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view …
Washington Was Right: The Supreme Court Could Have Intervened To Interpret French Treaties, Kevin P. Chapman
Washington Was Right: The Supreme Court Could Have Intervened To Interpret French Treaties, Kevin P. Chapman
Kevin P. Chapman
In the early days of his presidency, George Washington faced his first international crisis when French Ambassador Genet demanded that the United States honor its treaty obligations and provide support to the new French Republic in its ongoing war with Great Britain. Concerned about the legal effect that the French Revolution had on the viability of these obligations, Washington asked the Supreme Court to render an opinion. Chief Justice John Jay replied that the Constitution did not authorize the Supreme Court to render advisory opinions.
If Jay was correct, why did Washington, who presided over the very convention that produced …
Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin
Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin
Craig Martin
There has been little study of the analytical framework employed by the Japanese courts in resolving constitutional claims under the right to be treated as an equal and not be discriminated against. In the Japanese literature the only comparative analysis done focuses on American equal protection jurisprudence. This article examines the development of the equality rights doctrine in the Japanese Supreme Court from the perspective of an increasingly universal “proportionality analysis” approach to rights enforcement, of which the Canadian equality rights jurisprudence is a good example, in contrast to the American approach. This comparative analysis, which begins with a review …
Luther Martin, Maryland And The Constitution, William L. Reynolds
Luther Martin, Maryland And The Constitution, William L. Reynolds
William L. Reynolds
Reviews the life and contributions of Maryland lawyer and scholar Luther Martin (1748-1826).
Deliberative Democracy And Weak Courts: Constitutional Design In Nascent Democracies, Edsel F. Tupaz
Deliberative Democracy And Weak Courts: Constitutional Design In Nascent Democracies, Edsel F. Tupaz
Edsel F Tupaz
This Article addresses the question of constitutional design in young and transitional democracies. It argues for the adoption of a “weak” form of judicial review, as opposed to “strong” review which typifies much of contemporary adjudication. It briefly describes how the dialogical strain of deliberative democratic theory might well constitute the normative predicate for systems of weak review. In doing so, the Article draws from various judicial practices, from European supranational tribunals to Canadian courts and even Indian jurisprudence. The Article concludes with the suggestion that no judicial apparatus other than the weak structure of judicial review can better incite …
Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Invocations Of Foreign And International Law, Donald J. Kochan
Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Invocations Of Foreign And International Law, Donald J. Kochan
Donald J. Kochan
With increasing frequency and heightened debate, United States courts have been citing foreign and “international” law as authority for domestic decisions. This trend is inappropriate, undemocratic, and dangerous. The trend touches on fundamental concepts of sovereignty, democracy, the judicial role, and overall issues of effective governance. There are multiple problems with the judiciary’s reliance on extraterritorial and extra-constitutional foreign or international sources to guide their decisions. Perhaps the most fundamental flaw is its interference with rule of law values. To borrow from Judge Harold Levanthal, the use of international sources in judicial decision-making might be described as “the equivalent of …
The Agency Law Origins Of The Necessary And Proper Clause, Robert G. Natelson
The Agency Law Origins Of The Necessary And Proper Clause, Robert G. Natelson
Robert G. Natelson
This is the first of several writings by the author on the original meaning of the Constitution's Necessary and Proper Clause. It explains part of the legal background of the Clause, identifies it as a recital (not an independent grant of power) of the 18th century doctrine of incidental powers, and explains the content of that doctrine. The article has since been updated and supplemented by the author's signed chapters in Lawson, Miller, Natelson & Seidman, The Origins of the Necessary and Proper Clause (Cambridge Univ. Press, 2010).
The General Welfare Clause And The Public Trust: An Essay In Original Understanding, Robert G. Natelson
The General Welfare Clause And The Public Trust: An Essay In Original Understanding, Robert G. Natelson
Robert G. Natelson
This article explains the original meaning/understanding of the Constitution's General Welfare Clause, including the scope of the taxing and spending power granted to Congress
State Laws And The Independent Judiciary: An Analysis Of The Effects Of The Seventeenth Amendment On The Number Of Supreme Court Cases Holding State Laws Unconstitutional, Donald J. Kochan
Donald J. Kochan
In recent years, the Seventeenth Amendment has been the subject of legal scholarship, congressional hearings and debate, Supreme Court opinions, popular press articles and commentary, state legislative efforts aimed at repeal, and activist repeal movements. To date, the literature on the effects of the Seventeenth Amendment has focused almost exclusively on the effects on the political production of legislation and competition between legislative bodies. Very little attention has been given to the potential adverse effects of the Seventeenth Amendment on the relationship between state legislatures and the federal courts. This Article seeks to fill part of that literature gap, applying …
"Public Use" And The Independent Judiciary: Condemnation In An Interest-Group Perspective, Donald J. Kochan
"Public Use" And The Independent Judiciary: Condemnation In An Interest-Group Perspective, Donald J. Kochan
Donald J. Kochan
This Article reexamines the doctrine of public use under the Takings Clause and its ability to impede takings for private use through an application of public choice theory. It argues that the judicial validation of interest-group capture of the condemnation power through a relaxed public use standard in Takings Clause review can be explained by interest group politics and public choice theory and by institutional tendencies inherent in the independent judiciary. Legislators can sell the eminent domain power to special interests for almost any use, promising durability in the deal given the low probability that the judiciary will invalidate it …