Legal History Commons^™

Frederick Douglass And The Original Originalists, Bradley Rebeiro

BYU Law Review

Constitutional scholars incessantly grapple over the significance of the Constitution’s original meaning. More specifically, they are preoccupied with, on the one hand, what that meaning is (if such meaning exists) and, on the other hand, the exact nature of that meaning’s authority (if any) over the Constitution and its interpreters. But this debate is hardly novel. In fact, one of the most compelling voices in U.S. history was immersed in similar debates and, out of the constitutional sparring of his time, forged an arresting theory of constitutional interpretation. Frederick Douglass, once a fierce opponent of the U.S. Constitution, evolved into …

The Courts And Foreign Affairs At The Founding, Kevin Arlyck

BYU Law Review

No abstract provided.

Originalism Talk: A Legal History, Mary Ziegler

BYU Law Review

Progressives have long recognized the tremendous political appeal of originalism. For many scholars, originalism appears to have succeeded because it achieves results consistent with conservative values but promises judicial neutrality to the public. By drawing on new historical research on anti-abortion constitutionalism, this Article argues for a radically different understanding of the originalist ascendancy. Contrary to what we often think, conservative social movements at times made significant sacrifices in joining an originalist coalition. These costs were built in to what this Article calls originalism talk—the use of arguments, terms, and objectives associated with conservative originalism.

Scholars have documented the costs …

Constitutional Interpretation And History: New Originalism Or Eclecticism?, Stephen M. Feldman

Brigham Young University Journal of Public Law

The goal of originalism has always been purity. Originalists claim that their methods cleanse constitutional interpretation of politics, discretion, and indeterminacy. The key to attaining purity is history. Originalist methods supposedly discern in history a fixed constitutional meaning. Many originalists now claim that the most advanced method—the approach that reveals the purest constitutional meaning—is reasonable-person originalism. These new originalists ask the following question: When the Constitution was adopted, how would a hypothetical reasonable person have understood the text? This Article examines historical evidence from the early decades of nationhood to achieve two goals. First, it demonstrates that reasonable-person originalism is …

Planting Seeds Of Order: How The State Can Create, Shape, And Use Customary Law, Bryan H. Druzin

Brigham Young University Journal of Public Law

This paper argues that government can strategically trigger the emergence of customary law in order to achieve specific policy ends. While much has been written on customary law, the idea that the State can stimulate its emergence is a radical notion with clear policy implications. Harnessed correctly, such an approach could be a powerful legislative weapon to create, sustain, and even redirect social order. Building upon basic insights from game theory, the paper posits a way to do this: policymakers can deliberately recreate the social conditions that foster the emergence of customary order. The paper, however, draws a sharp divide …

Trans-Substantivity And The Processes Of American Law, David Marcus

BYU Law Review

The term “trans-substantive” refers to doctrine that, in form and manner of application, does not vary from one substantive context to the next. Trans-substantivity has long influenced the design of the law of civil procedure, and whether the principle should continue to do so has prompted a lot of debate among scholars. But this focus on civil procedure is too narrow. Doctrines that regulate all the processes of American law, from civil litigation to public administration, often hew to a trans-substantive norm. This Article draws upon administrative law, the doctrine of statutory interpretation, and the law of civil procedure to …

What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters

BYU Law Review

No abstract provided.

The Forgotten Founding Document: Considering The Ends Of The Law, A. Scott Loveless

Brigham Young University Journal of Public Law

On the difficult moral issues confronting the judiciary today, a long overlooked bit of guidance is provided in the Declaration of Independence, natural law. This paper discusses the moral foundations of the Constitution and their relation to positive law, primarily addressing "same-sex marriage" in the context of Proposition 8 in California, but broadly applicable to other moral/legal conflicts such as abortion and the display of religious texts on public grounds, such as the Ten Commandments. It also challenges the judicial activism evident in many such cases as a judicial violation of the requirements of substantive due process.

Becoming A Fruitful Tree: Christ And The Limits Of Legal Thinking, Elizabeth A. Clark

Vol. 3: Religious Conviction

This essay is adapted from a Spirit of the Law address given at BYU Law School on March 5, 2002.

Law In A Plural Society: Malaysian Experience, Zaki Azmi

BYU Law Review

No abstract provided.

Secularity And Secularism In The United Kingdom: On The Way To The First Amendment, Iain Mclean, Scot M. Peterson

BYU Law Review

No abstract provided.

The Dictionary Is Not A Fortress: Definitional Fallacies And A Corpus-Based Approach To Plain Meaning, Stephen C. Mouritsen

BYU Law Review

No abstract provided.

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

BYU Law Review

No abstract provided.

Situating Emotion: A Critical Realist View Of Emotion And Nonconscious Cognitive Processes For Law And Legal Theory, David J. Arkush

BYU Law Review

No abstract provided.

The Fundamental And Natural Law 'Repugnant Review' Origins Of Judicial Review: A Synergy Of Early English Corporate Law With Notions Of Fundamental And Natural Law, Lawrence Joseph Perrone

Brigham Young University Journal of Public Law

No abstract provided.

Criminal Law Beyond The State: Popular Trials On The Frontier, Andrea Mcdowell

BYU Law Review

No abstract provided.

Questioning The Rule Of Capture Metaphor For Nineteenth Century Public Land Law: A Look At R.S. 2477, James R. Rasband

Faculty Scholarship

No abstract provided.

James Madison, John Witherspoon, And Oliver Cowdery: The First Amendment And The 134th Section Of The Doctrine And Covenants, Rodney K. Smith

BYU Law Review

No abstract provided.

Religions, Human Rights, And Civil Society: Lessons From The Seventeenth Century For The Twenty-First Century, J. Paul Martin

BYU Law Review

No abstract provided.

Clark Memorandum: Fall 1994, J. Reuben Clark Law Society, J. Reuben Clark Law School

The Clark Memorandum

• Too Much Law, Too Little Consensus (Bruce C. Hafen)
• Pure Religion (Steven A. West)
• Keepers of the Flame (F. Burton Howard)
• A Safe Return (Michael Goldsmith)

Legal Policy, Technique And Research In Family Law—Some Comparative Aspects, Anders Agell

Brigham Young University Journal of Public Law

No abstract provided.

Clark Memorandum: Fall 1990, J. Reuben Clark Law Society, J. Reuben Clark Law School

The Clark Memorandum

• Acquired by Character, Not by Money (Kenneth W. Starr)
• Fundamentals and Initiatives (Elder Russell M. Nelson)
• Christ and the Code (Joseph G. Allegretti)
• Truth: a Shield to Memory (Elder Marion D. Hanks)

Medieval Universities, Germany And The United States: On Comparative Legal Education, Walter Otto Weyrauch

BYU Law Review

No abstract provided.

Origins Of The Common Law (A Three-Part Series) Part Iti: Common Law Under The Early Normans, David A. Thomas

BYU Law Review

No abstract provided.

The Politics Of Statutory Construction, Daniel M. Harris

BYU Law Review

No abstract provided.

Origins Of The Common Law (A Three-Part Series)-Part Ii. Anglo-Saxon Antecedents Of The Common Law, David A. Thomas

BYU Law Review

No abstract provided.

The Most Sacred Text: The Supreme Court's Use Of The Federalist Papers, James G. Wilson

BYU Law Review

No abstract provided.

Origins Of The Common Law ( A Three-Part Series) Part I: The Disappearance Of Roman Law From Dark Age Britain, David A. Thomas

BYU Law Review

No abstract provided.

Philosophical Hermeneutics: Toward An Alternative View Of Adjudication, James J. Hamula

BYU Law Review

No abstract provided.

Legislative History In The Interpretation Of Law: And Illustrative Case Study, Garth L. Magnum

BYU Law Review

No abstract provided.