Legal History Commons^™

Revisiting The History Of The Independent State Legislature Doctrine, Hayward H. Smith

St. Mary's Law Journal

In hopes of legitimizing the independent state legislature doctrine, its proponents have recently made two claims with respect to history, which this Article refers to as the Substance/Procedure Thesis and the Prevailing View Thesis. The former admits that the original understanding was that state “legislatures” promulgating election law pursuant to the Elector Appointment and Elections Clauses are required to comply with state constitutionally-mandated “procedural” lawmaking requirements (such as a potential gubernatorial veto), but asserts that they were otherwise understood to be independent of “substantive” state constitutional restraints. The latter asserts that the independent state legislature doctrine was the “prevailing view” …

The Meaning And Malleableness Of Liberty From 1897-1945, Quentin E. Smith

The Purdue Historian

This paper covers how the substance and meaning of liberty changed during the ending years of the Gilded Age (1870-1900) through the beginning ages of the Civil Rights Movement (1954-1968). Economic liberty took shape in the cases Allegeyer v. Louisiana (1897) and Lochner v. New York (1905). Civil liberties would take several more years to come into the Supreme Court’s jurisdiction. The case Gitlow v. New York (1925) began the establishment of incorporation of the Bill of Rights to the states, otherwise known as our fundamental liberties (note: The Supreme Court used selective incorporation, however). In the case U.S. v. …

Judicial Ethics In The Confluence Of National Security And Political Ideology: William Howard Taft And The “Teapot Dome” Oil Scandal As A Case Study For The Post-Trump Era, Joshua E. Kastenberg

St. Mary's Law Journal

Political scandal arose from almost the outset of President Warren G. Harding’s administration. The scandal included corruption in the Veterans’ Administration, in the Alien Property Custodian, but most importantly, in the executive branch’s oversight of the Navy’s ability to supply fuel to itself. The scandal reached the Court in three appeals arising from the transfer of naval petroleum management from the Department of the Navy to the Department of the Interior. Two of the appeals arose from President Coolidge’s decision to rescind oil leases to two companies that had funneled monies to the Secretary of the Interior. A third appeal …

The Original Meaning Of The Habeas Corpus Suspension Clause, The Right Of Natural Liberty, And Executive Discretion, John Harrison

William & Mary Bill of Rights Journal

The Habeas Corpus Suspension Clause of Article I, Section 9, is primarily a limit on Congress’s authority to authorize detention by the executive. It is not mainly concerned with the remedial writ of habeas corpus, but rather with the primary right of natural liberty. Suspensions of the privilege of the writ of habeas corpus are statutes that vest very broad discretion in the executive to decide which individuals to hold in custody. Detention of combatants under the law of war need not rest on a valid suspension, whether the combatant is an alien or a citizen of the United States. …

The Jurisprudence Of The First Woman Judge, Florence Allen: Challenging The Myth Of Women Judging Differently, Tracy A. Thomas

William & Mary Journal of Race, Gender, and Social Justice

This Article delves into the life and work of Judge [Florence] Allen to provide insight to the contributions and jurisprudence of the first woman judge. For history questions what difference putting a woman on the bench might have made. Part I explores Allen’s early influences on her intellectual development grounded in her progressive and politically active family, and her close network of female professional friends. Part II discusses her pivotal work with the women’s suffrage movement, working with the national organizations in New York and leading the legal and political efforts in Ohio. This proactive commitment to gender justice, however, …

Flexibly Fluid & Immutably Innate: Perception, Identity, And The Role Of Choice In Race, Emily Lamm

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Mercy Otis Warren: Republican Scribe And Defender Of Liberties, Mary Kathryn Mueller

Bound Away: The Liberty Journal of History

An active proponent of republican government, Mercy Otis Warren had a significant role in the revolutionary period. She was a woman who was close to the action, well-acquainted with the central figures, and instrumental in bringing about the monumental changes in America in the late 1700s. Referred to as the “muse of the revolution,”[1] Mercy Otis Warren used her pen to significantly broaden the colonial understanding of a republican form of government and passionately promote it. From a collection of early poems and political satires written in the years preceding the war to her epic history of the revolution published …

Western Reconstruction And Woman Suffrage, Lorianne Updike Toler

William & Mary Bill of Rights Journal

The normal narrative of woman suffrage in the United States begins in Seneca Falls, New York, and steadily marches along through the lives and papers of the most noteworthy national suffragettes—Elizabeth Cady Stanton, Susan B. Anthony, Lucy Stone, and a handful of other women until the hard-fought passage of the Nineteenth Amendment. The six-volume History of Woman Suffrage tomes tells just such a story.

Yet the dominant narrative “overgeneralizes the experiences of the national, largely eastern leadership” and “generally neglect[s] the West, or fail[s] to evaluate its significance within the national movement.” Although the American Woman Suffrage Association was organized …

Bulwark Of Equality: The Jury In America, Nino C. Monea

West Virginia Law Review

Many decry the state of societal inequality in modern America. Juries are not normally thought of as part of the solution, but history shows that they should be. It reveals that juries oftentimes advanced the interests of the poor and lowly when no one else would. It also reveals that powerful interests—government and corporate—have sought to disempower juries that rule in favor of marginalized groups. This Article examines four contexts throughout our history where juries have enhanced societal equality. (1) In early America, they resisted the British government and in the nascent republic were friends to debtors and farmers. (2) …

Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz

Arkansas Law Review

On July 10, 1832, President Andrew Jackson issued the most famous and controversial veto in United States history. The bill in question was “to modify and continue” the 1816 “act to incorporate the subscribers to the Bank of the United States. This was to recharter of the Second Bank of the United States whose constitutionality was famously upheld in McCulloch v. Maryland. The bill was passed by Congress and presented to Jackson on July 4. Six days later, Jackson vetoed the bill. Jackson’s veto mortally wounded the Second Bank, which would forever close its doors four years later at the …

Overruling Mcculloch?, Mark A. Graber

Arkansas Law Review

Daniel Webster warned Whig associates in 1841 that the Supreme Court would likely declare unconstitutional the national bank bill that Henry Clay was pushing through the Congress. This claim was probably based on inside information. Webster was a close association of Justice Joseph Story. The justices at this time frequently leaked word to their political allies of judicial sentiments on the issues of the day. Even if Webster lacked first-hand knowledge of how the Taney Court would probably rule in a case raising the constitutionality of the national bank, the personnel on that tribunal provided strong grounds for Whig pessimism. …

M'Culloch In Context, Mark R. Killenbeck

Arkansas Law Review

M’Culloch v. Maryland is rightly regarded as a landmark opinion, one that affirmed the ability of Congress to exercise implied powers, articulated a rule of deference to Congressional judgments about whether given legislative actions were in fact “necessary,” and limited the ability of the states to impair or restrict the operations of the federal government. Most scholarly discussions of the case and its legacy emphasize these aspects of the decision. Less common are attempts to place M’Culloch within the ebb and flow of the Marshall Court and the political and social realities of the time. So, for example, very few …

Mcculloch At 200, David S. Schwartz

Arkansas Law Review

March 6, 2019 marked the 200th anniversary of the Supreme Court’s issuance of its decision in McCulloch v. Maryland, upholding the constitutionality of the Second Bank of the United States, the successor to Alexander Hamilton’s national bank. McCulloch v. Maryland involved a constitutional challenge by the Second Bank of the United States to a Maryland tax on the banknotes issued by the Bank’s Baltimore branch. The tax was probably designed to raise the Second Bank’s cost of issuing loans and thereby disadvantage it relative to Maryland’s own state-chartered banks. Marshall’s opinion famously rejected the Jeffersonian strict-constructionist argument that implied powers …

Texas Indian Holocaust And Survival: Mcallen Grace Brethren Church V. Salazar, Milo Colton

The Scholar: St. Mary's Law Review on Race and Social Justice

When the first Europeans entered the land that would one day be called Texas, they found a place that contained more Indian tribes than any other would-be American state at the time. At the turn of the twentieth century, the federal government documented that American Indians in Texas were nearly extinct, decreasing in number from 708 people in 1890 to 470 in 1900. A century later, the U.S. census recorded an explosion in the American Indian population living in Texas at 215,599 people. By 2010, that population jumped to 315,264 people.

Part One of this Article chronicles the forces contributing …

The Mass Murder Of The European Jews And The Concept Of ‘Genocide’ In The Nuremberg Trials: Reassessing Raphaël Lemkin’S Impact, Alexa Stiller

Genocide Studies and Prevention: An International Journal

Nuremberg’s prosecutors prominently used Lemkin’s genocide concept. They also dealt in detail with the mass murder of Europe’s Jews. However, for them ‘genocide’ and the Holocaust were not congruent. They used different definitions of Lemkin’s concept and interpreted the relationship between the mass murder of the European Jews and the entire mass violence of the Nazis differently. Lemkin had little influence on the application of his concept in the Nuremberg trials between 1945 and 1949. The implementation of the 1948 United Nations Genocide Convention put an end to the broad use of the original concept from 1944. Although both Lemkin …

50 Years Of Excellence: A History Of The St. Mary's Law Journal, Barbara Hanson Nellermoe

St. Mary's Law Journal

Founded in 1969, the St. Mary’s Law Journal has climbed the road to excellence. Originally built on the foundation of being a “practitioner’s journal,” the St. Mary’s Law Journal continues to produce quality scholarship that is nationally recognized and frequently used by members of the bench and bar. From its grassroots origins to the world-class law review it is today, the St. Mary’s Law Journal continues to maintain its prestigious position in the realm of law reviews by ranking in the top five percent most-cited law reviews in federal and state courts nationwide.

In celebration of the St. Mary’s Law …

Ike’S Constitutional Venturing: The Institutionalization Of The Cia, Covert Action, And American Interventionism, Jacob A. Bruggeman

Grand Valley Journal of History

U.S. covert action from the 1950s onward was shaped, in part, by the success a CIA-orchestrated coup d'état in which the United States deposed the popular Iranian nationalist Mohammed Mossadegh. Ordered by president Eisenhower, the coup in Iran set the precedent for utilizing covert action as a means of achieving State goals. In so doing, President Eisenhower overturned the precedent set by his immediate predecessor, President Truman: that is, the precedent of using the CIA in its intended function, gathering and evaluating intelligence. The coup, then, is an exemplary case of venture constitutionalism. Eisenhower, in ordering the coup, extended his …

Indian Country And The Territory Clause: Washington's Promise At The Framing, John Hayden Dossett

American University Law Review

No abstract provided.

Remembering An Abolitionist, Ambassador John R. Miller (May 23, 1938-October 4, 2017), Eleanor Kennelly Gaetan, Donna M. Hughes

Dignity: A Journal of Analysis of Exploitation and Violence

A memorial for Ambassador-at-Large to Monitor and Combat Trafficking in Persons, John R. Miller (May 23, 1938-October 4, 2017). Ambassador Miller believed modern-day slavery, encompassing sex trafficking and forced labor, requires a principled global offensive that the United States is morally obligated to lead. In the four formative years he led the State Department’s Office to Monitor and Combat Trafficking in Persons, 2002 to 2006, John Miller set the office’s course as diplomatically aggressive and programmatically creative. He made the annual Trafficking in Persons report more than a bureaucratic submission, putting daring heroes at the center, and insisting on compelling …

A Machine Made Of Words: Our Incompletely Theorized Constitution, Gregory Brazeal

The University of New Hampshire Law Review

[Excerpt]”Many scholars have observed that the Constitution of the United States can be understood as an example of what Cass Sunstein calls an “incompletely theorized agreement.” The Constitution contains a number of extremely general terms, such as “liberty,” “necessary and proper,” and “due process.” The Framers of the Constitution, it is suggested, did not attempt to specify precisely how each of these principles would operate in every case. On this view, the Constitution is incompletely theorized in the sense of representing “a comfortable and even emphatic agreement on a general principle, accompanied by sharp disagreement about particular cases.” For example, …

Worcester V. Georgia: A Breakdown In The Separation Of Powers, Matthew L. Sundquist

American Indian Law Review

No abstract provided.

Ada Lois Sipuel Fisher: How A “Skinny Little Girl” Took On The University Of Oklahoma And Helped Pave The Road To Brown V. Board Of Education, Cheryl B. Wattley

Oklahoma Law Review

No abstract provided.

Preaching To The Court House And Judging In The Temple, Nathan B. Oman

BYU Law Review

No abstract provided.

United States V. Hatahley: A Legal Archaeology Case Study In Law And Racial Conflict, Debora L. Threedy

American Indian Law Review

This article is a case study of United States v. Hatahley using the methodology of "legal archaeology" to reconstruct the historical, social, and economic context of the litigation. In 1953, a group of individual Navajos brought suit under the Federal Tort Claims Act for the destruction of over one hundred horses and burros. The first section of the article presents two contrasting narratives for the case. The first relates what we know about the case from the reported opinions, while the second locates the litigated case within the larger social context by examining the parties, the history of incidents culminating …

Legislative Delegation And Two Conceptions Of The Legislative Power, Robert C. Sarvis

The University of New Hampshire Law Review

[Excerpt] "The current federal government, with its burgeoning administrative agencies, does not embody what most Americans would recognize as the constitutional doctrine of separation of powers. This is, in part, due to the Congress’s frequent practice of delegating legislative powers to the executive branch, i.e., giving administrative agencies the power to promulgate rules regulating private behavior and having the force of law. Legislative delegation has been the subject of academic, legal, and political wrangling since the early congresses and clearly calls into question whether modern practice adheres to constitutional norms. This article discusses legislative delegation in terms of some core …

American Indian Influence On The United States Constitution And Its Framers, Robert J. Miller

American Indian Law Review

No abstract provided.

Philosophical, Legal, And Social Rationales For Appropriating The Tribal Estate, 1607 To1980, Arrell Morgan Gibson

American Indian Law Review

No abstract provided.

Harlan's Formative Period: The Years Before The War, David G. Farrelly

Kentucky Law Journal

No abstract provided.

West Virginia: The Mountain State, C. C. Williams Jr.

West Virginia Law Review

No abstract provided.

The Story Of The Constitution, C. H. Ambler

West Virginia Law Review

No abstract provided.