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Articles 1 - 30 of 39
Full-Text Articles in Legal History
The Gross Injustices Of Capital Punishment: A Torturous Practice And Justice Thurgood Marshall’S Astute Appraisal Of The Death Penalty’S Cruelty, Discriminatory Use, And Unconstitutionality, John D. Bessler
Washington and Lee Journal of Civil Rights and Social Justice
Through the centuries, capital punishment and torture have been used by monarchs, authoritarian regimes, and judicial systems around the world. Although torture is now expressly outlawed by international law, capital punishment—questioned by Quakers in the seventeenth century and by the Italian philosopher Cesare Beccaria and many others in the following century—has been authorized over time by various legislative bodies, including in the United States. It was Beccaria’s book, Dei delitti e delle pene (1764), translated into French and then into English as An Essay on Crimes and Punishments (1767), that fueled the still-ongoing international movement to outlaw the death penalty. …
Democratizing Abolition, Brandon Hasbrouck
Democratizing Abolition, Brandon Hasbrouck
Scholarly Articles
When abolitionists discuss remedies for past and present injustices, they are frequently met with apparently pragmatic objections to the viability of such bold remedies in U.S. legislatures and courts held captive by reactionary forces. Previous movements have seen their lesser reforms dashed by the white supremacist capitalist order that retains its grip on power in America. While such objectors contend that abolitionists should not ask for so much justice, abolitionists should in fact demand significantly more.
Remedying our country’s history of subordination will not be complete without establishing abolition democracy. While our classical conception of a liberal republic asks us …
Playing With Words: Amar’S Nationalist Constitution, Robert J. Pushaw Jr.
Playing With Words: Amar’S Nationalist Constitution, Robert J. Pushaw Jr.
Washington and Lee Law Review Online
This essay provides a balanced critique of Akhil Amar’s important book on early constitutional theory and practice. On the one hand, Amar’s work has three unique virtues. First, unlike other constitutional historians, he does not examine a particular clause or a brief time period (such as 1787‑1789), but rather analyzes the Constitution as a whole from 1760 to 1840. This holistic and longitudinal approach enables him to trace in detail the evolving constitutional views of America’s leading Founders—John Adams, Alexander Hamilton, Thomas Jefferson, James Madison, John Marshall, and George Washington—and the personal relationships among those men that helped shape those …
Eminent Domain And Unfettered Discretion: Lessons From A History Of U.S. Territorial Takings, Jill M. Fraley
Eminent Domain And Unfettered Discretion: Lessons From A History Of U.S. Territorial Takings, Jill M. Fraley
Scholarly Articles
Eminent domain is a minimal constitutional protection for private property and one that is subject to far more discretion than previously recognized by scholars. This Article traces a novel legal history of land takings within the U.S. Territories, focusing on some of the most egregious and controversial incidents and problematic patterns originating within eminent domain law. Comparing this history to recent research that demonstrates how takings in the States have disproportionately impacted Black communities, this Article articulates three patterns of injustices in takings echoing between Black mainland communities and indigenous communities in the Territories: large-scale federally funded actions, local government …
The Other Ordinary Persons, Fred O. Smith, Jr.
The Other Ordinary Persons, Fred O. Smith, Jr.
Washington and Lee Law Review
If originalism aims to center the original public meaning of text, who constitutes “the public”? Are we doing enough to capture historically excluded voices: impoverished white planters; dispossessed Natives; silenced women; and the enslaved? If not, what more is required? And for those who are not originalists, how do we ensure that, as American law consults the wisdom of the ages, we do not sever entire sources of wisdom?
This brief symposium Article engages these themes, offering two modest, interrelated claims. The first is that important informational, ethical, and democratic benefits accrue when American legal doctrine includes the voices and …
Church History, Liberty, And Political Morality: A Response To Professor Calhoun, Ian Huyett
Church History, Liberty, And Political Morality: A Response To Professor Calhoun, Ian Huyett
Washington and Lee Law Review Online
In his address, Professor Calhoun used American Christian abolitionism to illustrate the beneficial role that religion can play in political debate. Surveying the past two millennia, I argue that Christian political thought has protected liberty in every era of the church’s dramatic history. Along the way, I rebut critics—from the left and right—who urge that Christianity’s political influence has been unhelpful or harmful. I also seek to show that statements like “religion has no place in politics” are best understood as expressions of arbitrary bias.
Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt
Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt
Washington and Lee Law Review Online
In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial …
Separation Of Church And State: Jefferson, Lincoln, And The Reverend Martin Luther King, Jr., Show It Was Never Intended To Separate Religion From Politics, Samuel W. Calhoun
Separation Of Church And State: Jefferson, Lincoln, And The Reverend Martin Luther King, Jr., Show It Was Never Intended To Separate Religion From Politics, Samuel W. Calhoun
Washington and Lee Law Review Online
This Essay argues that it’s perfectly fine for religious citizens to openly bring their faith-based values to public policy disputes. Part II demonstrates that the Founders, exemplified by Thomas Jefferson, never intended to separate religion from politics. Part III, focusing upon Abraham Lincoln’s opposition to slavery, shows that religion and politics have been continuously intermixed ever since the Founding. Part IV, emphasizing the Reverend Martin Luther King, Jr., argues that no other reasons justify barring faith-based arguments from the public square.
Brief Of Scholars Of The History And Original Meaning Of The Fourth Amendment As Amici Curiae In Support Of Petitioner: Carpenter V. United States, Margaret Hu
Scholarly Articles
Law enforcement officials wanted to learn where Petitioner Timothy Carpenter was at the time of certain robberies. To figure that out, they obtained records from his cellular service provider showing the movements of his cell phone. Examining those records, they were able to track Carpenter’s whereabouts over a four-month period. Obtaining and examining those records was a “search” in any normal sense of the word—a search of documents and a search for Carpenter and one of his personal effects. It was therefore a “search” within the meaning of the Fourth Amendment. When the Amendment was ratified, to “search” meant to …
How Roe V. Wade Was Written, David J. Garrow
How Roe V. Wade Was Written, David J. Garrow
Washington and Lee Law Review
No abstract provided.
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
Washington and Lee Law Review
No abstract provided.
Beyond Backlash: Legal History, Polarization, And Roe V. Wade, Mary Ziegler
Beyond Backlash: Legal History, Polarization, And Roe V. Wade, Mary Ziegler
Washington and Lee Law Review
No abstract provided.
From The Xyz Affair To The War On Terror: The Justiciability Of Time Of War, John M. Hagan
From The Xyz Affair To The War On Terror: The Justiciability Of Time Of War, John M. Hagan
Washington and Lee Law Review
No abstract provided.
The Strange History Of "All Men Are Created Equal", Pauline Maier
The Strange History Of "All Men Are Created Equal", Pauline Maier
Washington and Lee Law Review
No abstract provided.
The American Founders' Responsibility, Ralph Lerner
The American Founders' Responsibility, Ralph Lerner
Washington and Lee Law Review
No abstract provided.
Constitutional Fictions And Meritocratic Success Stories, Robin West
Constitutional Fictions And Meritocratic Success Stories, Robin West
Washington and Lee Law Review
No abstract provided.
Performing The Constitution, Denis J. Brion
Performing The Constitution, Denis J. Brion
Washington and Lee Law Review
No abstract provided.
The Court Between Hegemonies, L. A. Powe, Jr.
The Court Between Hegemonies, L. A. Powe, Jr.
Washington and Lee Law Review
No abstract provided.
The Reconstruction Amendments' Debates. Edited By Alfred Avins, Robert M. Ireland
The Reconstruction Amendments' Debates. Edited By Alfred Avins, Robert M. Ireland
Washington and Lee Law Review
No abstract provided.
Fragile Coalition Interviews - Group - Tape 6, July 12, 1975, M. Caldwell Butler
Fragile Coalition Interviews - Group - Tape 6, July 12, 1975, M. Caldwell Butler
Fragile Coalition Interviews
No abstract provided.
Fragile Coalition Interviews - Group - Tapes 4&5, July 11-12, 1975, M. Caldwell Butler
Fragile Coalition Interviews - Group - Tapes 4&5, July 11-12, 1975, M. Caldwell Butler
Fragile Coalition Interviews
No abstract provided.
M. Caldwell Butler Audio Diary - Digest Of Transcripts, July 10,1975, M. Caldwell Butler
M. Caldwell Butler Audio Diary - Digest Of Transcripts, July 10,1975, M. Caldwell Butler
Butler-Woodlief Recordings
No abstract provided.
Fragile Coalition Interviews - Corrected Transcripts - Thornton, M. Caldwell Butler
Fragile Coalition Interviews - Corrected Transcripts - Thornton, M. Caldwell Butler
Fragile Coalition Interviews
No abstract provided.
Fragile Coalition Interviews - Corrected Transcripts - Railsback, M. Caldwell Butler
Fragile Coalition Interviews - Corrected Transcripts - Railsback, M. Caldwell Butler
Fragile Coalition Interviews
No abstract provided.
Fragile Coalition Interviews - Corrected Transcripts - Flowers, M. Caldwell Butler
Fragile Coalition Interviews - Corrected Transcripts - Flowers, M. Caldwell Butler
Fragile Coalition Interviews
No abstract provided.
Fragile Coalition Interviews - Corrected Transcripts - Cohen, M. Caldwell Butler
Fragile Coalition Interviews - Corrected Transcripts - Cohen, M. Caldwell Butler
Fragile Coalition Interviews
No abstract provided.
M. Caldwell Butler Audio Diary, August 8, 1974 - Transcript, M. Caldwell Butler
M. Caldwell Butler Audio Diary, August 8, 1974 - Transcript, M. Caldwell Butler
Butler-Woodlief Recordings
No abstract provided.
M. Caldwell Butler Audio Diary, July 27-31, 1974, M. Caldwell Butler
M. Caldwell Butler Audio Diary, July 27-31, 1974, M. Caldwell Butler
Butler-Woodlief Recordings
No abstract provided.
M. Caldwell Butler Audio Diary With Thomas Mooney Re July 25-27, 1974, M. Caldwell Butler
M. Caldwell Butler Audio Diary With Thomas Mooney Re July 25-27, 1974, M. Caldwell Butler
Butler-Mooney Recordings
No abstract provided.
M. Caldwell Butler Audio Diary, July 20-26, 1974 - Transcript, M. Caldwell Butler
M. Caldwell Butler Audio Diary, July 20-26, 1974 - Transcript, M. Caldwell Butler
Butler-Woodlief Recordings
No abstract provided.