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Articles 1 - 27 of 27

Full-Text Articles in Legal History

Founding-Era Conventions And The Meaning Of The Constitution’S “Convention For Proposing Amendments”, Robert G. Natelson Jan 2013

Founding-Era Conventions And The Meaning Of The Constitution’S “Convention For Proposing Amendments”, Robert G. Natelson

Robert G. Natelson

Under Article V of the U.S. Constitution, two thirds of state legislatures may require Congress to call a “Convention for proposing Amendments.” Because this procedure has never been used, commentators frequently debate the composition of the convention and the rules governing the application and convention process. However, the debate has proceeded almost entirely without knowledge of the many multi-colony and multi-state conventions held during the eighteenth century, of which the Constitutional Convention was only one. These conventions were governed by universally-accepted convention practices and protocols. This Article surveys those conventions and shows how their practices and protocols shaped the ...


The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw Dec 2012

The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw

Scott Titshaw

Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships, or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. In the process, it examines several aspects of the marriage debate in detail. After describing the flexibility of marriage as it has evolved over time, the article focuses on recent state constitutional amendments attempting to stop further ...


Analysis: Williams V Scott, Jon Foster Apr 2012

Analysis: Williams V Scott, Jon Foster

Jon Foster

In the case of Williams v Scott, the Court has been asked to determine the constitutionality of Senate Bill 2100 in relation to the rights of public sector employees to collectively bargain.


How The British Gun Control Program Precipitated The American Revolution, David B. Kopel Jan 2012

How The British Gun Control Program Precipitated The American Revolution, David B. Kopel

David B Kopel

Abstract: This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least if ...


“Health Laws Of Every Description”: John Marshall’S Ruling On A Federal Health Care Law, David B. Kopel, Robert G. Natelson Jun 2011

“Health Laws Of Every Description”: John Marshall’S Ruling On A Federal Health Care Law, David B. Kopel, Robert G. Natelson

David B Kopel

If John Marshall, the greatest of Chief Justices, were to hear a challenge to the constitutionality of the Patient Protection and Affordable Care Act of 2010, how would he rule? Would the nationalist justice who, according to the New Deal Supreme Court, “described the Federal commerce power with a breadth never yet exceeded,” agree that federal control of health care was within that power?

In the fictional opinion below, Marshall rules on the constitutionality of a bill similar to the Patient Protection and Affordable Care Act.

We constructed this opinion chiefly from direct quotation and paraphrases of Marshall’s own ...


A Propósito Del Giro Historiográfico En Derecho Internacional, Ignacio De La Rasilla Del Moral Jan 2011

A Propósito Del Giro Historiográfico En Derecho Internacional, Ignacio De La Rasilla Del Moral

Ignacio de la Rasilla del Moral, Ph.D.

Illiteracy rate in Spain at the turn of the 20th century was of 63.8% and 16.000 students - out of a total Spanish population of 18.6 million - attended the 10 existing Spanish universities. 2.000 university titles were accorded, half of which in Law in 1900, and 200 students obtained their doctorates by the Central University of Madrid which held the academic monopoly of doctoral studies at the time. In 1902, the Bulletin of the Institution of Free Teaching published a chronicle signed by Aniceto Sela y Sampil on the didactic methods he employed to teach Public and ...


Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, David B. Kopel, Gary Lawson Jan 2011

Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, David B. Kopel, Gary Lawson

David B Kopel

In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate. The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must ...


The Right To Arms In The Living Constitution, David B. Kopel Jan 2010

The Right To Arms In The Living Constitution, David B. Kopel

David B Kopel

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect ...


State Court Standards Of Review For The Right To Keep And Bear Arms, David B. Kopel, Clayton Cramer Jan 2010

State Court Standards Of Review For The Right To Keep And Bear Arms, David B. Kopel, Clayton Cramer

David B Kopel

Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying "reasonableness," many courts have used reasonableness as a ...


Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson Jan 2010

Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson

David B Kopel

The Constitution’s original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island’s ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin’s article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution’s Commerce Clause a scope that virtually no one in the Founding Era believed it had.


Dhimmitude And Disarmament, David B. Kopel Jan 2008

Dhimmitude And Disarmament, David B. Kopel

David B Kopel

Under shari'a law, non-Muslims, known as dhimmi, have been forbidden to possess arms, and to defend themselves from attacks by Muslims. The disarmament is one aspect of the pervasive civil inferiority of non-Muslims, a status known as dhimmitude. This Essay examines the historical effects of the shari'a disarmament, based on three books by Bat Ye'or, the world's leading scholar of dhimmitude. As Ye'or details, the disarmament had catastrophic consequences, extending far beyond the direct loss of the dhimmi's ability to defend themselves. The essay concludes by observing how pretend gun-free zones on college campuses ...


The Natural Right Of Self-Defense: Heller's Lesson For The World, David B. Kopel Jan 2008

The Natural Right Of Self-Defense: Heller's Lesson For The World, David B. Kopel

David B Kopel

The U.S. Supreme Court's decision in District of Columbia v. Heller constitutionalized the right of self-defense, and described self-defense as a natural, inherent right. Analysis of natural law in Heller shows why Justice Stevens' dissent is clearly incorrect, and illuminates a crucial weakness in Justice Breyer's dissent. The constitutional recognition of the natural law right of self-defense has important implications for American law, and for foreign and international law.


Self-Defense In Asian Religions, David B. Kopel Jan 2007

Self-Defense In Asian Religions, David B. Kopel

David B Kopel

This Article investigates the attitudes of six Far Eastern religions - Confucianism, Taoism, Hinduism, Sikhism, Jainism, and Buddhism - towards the legitimacy of the use of force in individual and collective contexts. Self-defense is strongly legitimated in the theory and practice of the major Far Eastern religions. The finding is consistent with natural law theory that some aspects of the human personality, including the self-defense instinct, are inherent in human nature, rather than being entirely determined by culture.


Armed Resistance To The Holocaust, David B. Kopel Jan 2007

Armed Resistance To The Holocaust, David B. Kopel

David B Kopel

Contrary to myth of Jewish passivity, many Jews did fight back during the Holocaust. They shut down the extermination camp at Sobibor, rose up in the Warsaw Ghetto, and fought in the woods and swamps all over Eastern Europe. Indeed, Jews resisted at a higher rate than did any other population under Nazi rule. The experience of the Holocaust shows why Jews, and all people of good will, should support the right of potential genocide victims to possess defensive arms, and refutes the notion that violence is necessarily immoral.


Is Resisting Genocide A Human Right?, David B. Kopel, Joanne D. Eisen, Paul Gallant Jan 2006

Is Resisting Genocide A Human Right?, David B. Kopel, Joanne D. Eisen, Paul Gallant

David B Kopel

Closely examining the Darfur, Sudan, genocide, and making reference to other genocides, this Article argues that the genocide prevention strategies which are currently favored by the United Nations are ineffective. This Article details the failures of targeted sanctions, United Nations peacekeepers, and other antigenocide programs. Then, this Article analyzes the Genocide Convention and other sources of international human rights law. Because the very strong language of the Genocide Convention forbids any form of complicity in genocide, and because the Genocide Convention is jus cogens (meaning that it prevails over any conflicting national or international law), this Article concludes that the ...


The Catholic Second Amendment, David B. Kopel Jan 2006

The Catholic Second Amendment, David B. Kopel

David B Kopel

At the beginning of the second millennium, there was no separation of church and state, and kings ruled the church. Tyrannicide was considered sinful. By the end of the thirteenth century, however, everything had changed. The Little Renaissance that began in the eleventh century led to a revolution in political and moral philosophy, so that using force to overthrow a tyrannical government became a positive moral duty. The intellectual revolution was an essential step in the evolution of Western political philosophy that eventually led to the American Revolution.


The Gold Standard Of Gun Control - Book Review Of Joyce Malcolm, Guns And Violence: The English Experience, David B. Kopel, Joanne D. Eisen, Paul Gallant Jan 2006

The Gold Standard Of Gun Control - Book Review Of Joyce Malcolm, Guns And Violence: The English Experience, David B. Kopel, Joanne D. Eisen, Paul Gallant

David B Kopel

Guns and Violence tells a remarkable story of a society's self-destruction, of how a government in a few decades managed to reverse six hundred years of social progress in violence reduction. The book is also a testament to the amazing self-confidence of British governments; Labour and Conservative alike have proceeded with an extreme anti-self-defense agenda, although the agenda has never had much supporting evidence beyond the government's own platitudes.


The Scottish And English Religious Roots Of The American Right To Arms: Buchanan, Rutherford, Locke, Sidney, And The Duty To Overthrow Tyranny, David B. Kopel Jan 2005

The Scottish And English Religious Roots Of The American Right To Arms: Buchanan, Rutherford, Locke, Sidney, And The Duty To Overthrow Tyranny, David B. Kopel

David B Kopel

Many twenty-first century Americans believe that they have a God-given right to possess arms as a last resort against tyranny. One of the most important sources of that belief is the struggle for freedom of conscience in the United Kingdom during the reigns of Elizabeth I and the Stuarts. A moral right and duty to use force against tyranny was explicated by the Scottish Presbyterians George Buchanan and Samuel Rutherford. The free-thinking English Christians John Locke and Algernon Sidney broadened and deepened the ideas of Buchanan and Rutherford. The result was a sophisticated defense of religious freedom, which was to ...


The Religious Roots Of The American Revolution And The Right To Keep And Bear Arms, David B. Kopel Jan 2005

The Religious Roots Of The American Revolution And The Right To Keep And Bear Arms, David B. Kopel

David B Kopel

This article examines the religious background of the American Revolution. The article details how the particular religious beliefs of the American colonists developed so that the American people eventually came to believe that overthrowing King George and Parliament was a sacred obligation. The religious attitudes which impelled the Americans to armed revolution are an essential component of the American ideology of the right to keep and bear arms.


Science, Identity, And The Construction Of The Gay Political Narrative, Nancy J. Knauer Jan 2003

Science, Identity, And The Construction Of The Gay Political Narrative, Nancy J. Knauer

Nancy J. Knauer

This Article contends that the current debate over gay civil rights is, at base, a dispute over the nature of same-sex desire. Pro-gay forces advocate an ethnic or identity model of homosexuality based on the conviction that sexual orientation is an immutable, unchosen, and benign characteristic. The assertion that, in essence, gays are "born that way," has produced a gay political narrative that rests on claims of shared identity (i.e., homosexuals are a blameless minority) and arguments of equivalence (i.e., as a blameless minority, homosexuals deserve equal treatment and protection against discrimination). The pro-family counter-narrative is based on ...


Homosexuality As Contagion: From The Well Of Loneliness To The Boy Scouts, Nancy J. Knauer Jan 2000

Homosexuality As Contagion: From The Well Of Loneliness To The Boy Scouts, Nancy J. Knauer

Nancy J. Knauer

In the political arena, there are currently two central and competing views of homosexuality. Pro-family organizations, working from a contagion model of homosexuality, contend that homosexuality is an immoral, unhealthy, and freely chosen vice. Many pro-gay organizations espouse an identity model of homosexuality under which sexual orientation is an immutable, unchosen, and benign characteristic. Both pro-family and pro-gay organizations believe that to define homosexuality is to control its legal and political status. This sometimes bitter debate regarding the nature of same-sex desire might seem like an exceedingly contemporary development. However, the ex-gay media blitz of 2000 represents only the latest ...


Self-Defense: The Equalizer, David B. Kopel, Linda Gorman Jan 2000

Self-Defense: The Equalizer, David B. Kopel, Linda Gorman

David B Kopel

Experiments in tightening gun-control laws have eroded the right of self defense and failed to stop serious crime. Studies Japan, the United Kingdom, Canada, and Australia.


The Evolving Police Power: Some Observations For A New Century, David B. Kopel, Glenn Harlan Reynolds Jan 2000

The Evolving Police Power: Some Observations For A New Century, David B. Kopel, Glenn Harlan Reynolds

David B Kopel

A review of state and federal courts decisions on the scope of state police powers suggests that the shift from the more restrictive sic utere principle to the more open salus populi principle may be reversing, with courts -- at least in cases involving sex and marriage -- taking a much more skeptical view of government objectives and justifications.


All The Way Down The Slippery Slope: Gun Prohibition In England And Some Lessons For Civil Liberties In America, David B. Kopel, Joseph Olson Jan 1999

All The Way Down The Slippery Slope: Gun Prohibition In England And Some Lessons For Civil Liberties In America, David B. Kopel, Joseph Olson

David B Kopel

Whenever civil liberties issues are contested, proponents of greater restrictions often chide civil liberties defenders for being unwilling to offer moderate concessions. Frequently, persons advocating restrictions on civil liberties claim that the "moderate" restriction will not infringe the core civil liberty. When rights advocates raise the "slippery slope" argument, they are criticized for being excessively fearful. The goal of the article is to refine our understanding of "slippery slopes" by examining a case in which a civil liberty really did slide all the way down the slippery slope.

The right to arms in Great Britain was entirely unrestricted at the ...


Relativism, Reflective Equilibrium, And Justice, Justin Schwartz Jan 1997

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into ...


Taking Federalism Seriously: Lopez And The Partial-Birth Abortion Ban, David B. Kopel, Glenn Harlan Reynolds Jan 1997

Taking Federalism Seriously: Lopez And The Partial-Birth Abortion Ban, David B. Kopel, Glenn Harlan Reynolds

David B Kopel

In United States v. Lopez, the United States Supreme Court struck down the federal Gun Free School Zones law as not within congressional power to regulate interstate commerce. This article examines post-Lopez jurisprudence regarding the permissible scope of federal criminal law. Analyzing a wide variety of federal criminal laws challenged in post-Lopez cases (including arson, robbery, gun possession, drugs, violence against women, and abortion clinic disruption), the article shows how courts have followed or evaded Lopez. Studying the proposed federal ban on partial birth abortions, the article suggests that the ban is not a lawful exercise of Congress' interstate commerce ...


Preventing A Reign Of Terror: Civil Liberties Implications Of Terrorism Legislation, David B. Kopel, Joseph Olson Jan 1996

Preventing A Reign Of Terror: Civil Liberties Implications Of Terrorism Legislation, David B. Kopel, Joseph Olson

David B Kopel

Domestic terrorism is not a reason to abrogate constitutional rights, argues this 101-page paper, which discusses the 1996 omnibus federal terrorism bill, and other terror proposals. Topics include: scope of the terrorism problem; Britain's mistaken response to terror; use of the military in law enforcement; the Internet; militias; wiretapping; the FBI; and federalizing local crime.