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Full-Text Articles in Legal History

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum May 2009

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum

Faculty Scholarship Series

This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. I examine the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. I contend that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that ...


A Postscript For Charles Black: The Supreme Court And Race In The Progressive Era, Benno C. Schmidt Jr. Jan 1986

A Postscript For Charles Black: The Supreme Court And Race In The Progressive Era, Benno C. Schmidt Jr.

Faculty Scholarship Series

Charles Black's work in constitutional law is,1 like the "slow politics of
the text"2 of the great Document itself, a statement of fundamental truths
about our condition and aspirations that often takes a while to set in. As
Harry Wellington has noted, few people had the sense to see The People
and the Court3 when published in 1960 for what it should with deliberate
speed have become: the dominant influence on my generation of constitu?
tional lawyers' efforts to see the problem of judicial review beyond the
shadows of the New Deal and the debacle of FDR ...


The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson Jan 1978

The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson

Faculty Scholarship Series

Between John Marshall's appointment to the Supreme Court in
1801 and Andrew Jackson's inauguration as President in 1829, the
Marshall Court declared one congressional act unconstitutional and
invalidated state statutes in fourteen cases. Among these cases were
many of Marshall's major judicial opinions, including Marbury v.
Madison Fletcher v. Peck, McCulloch v. Maryland,s Trustees of
Dartmouth College v. Woodward, and Gibbons v. Ogden.
Marshall's constitutional cases have been of enduring significance
and have generated widespread scholarly debate. Perhaps the
single issue that has most divided scholars is whether the great Chief
Justice should be understood ...


Public Order Under Law: The Role Of The Advisor-Draftsman In The Formation Of Code Or Constitution (With Harold D. Lasswell), George H. Dession Jan 1955

Public Order Under Law: The Role Of The Advisor-Draftsman In The Formation Of Code Or Constitution (With Harold D. Lasswell), George H. Dession

Faculty Scholarship Series

PROBLEMS of special gravity face the lawyer who serves as advisor or draftsman to a constitutional convention or a legislative body. The consequences of his advice, if it is taken, will reverberate large and long; and in the performance of his advisory functions he must take account not only of these consequences but of special obstacles as well. It is our purpose here to examine certain aspects of the advisor-draftsman's role in the making of a constitution or a legal code: his professional relation to his client, the community's representative; the special tools of knowledge and language employed ...


Treaties And Executive Agreements A Reply, Edwin Borchard Jan 1945

Treaties And Executive Agreements A Reply, Edwin Borchard

Faculty Scholarship Series

The authors of the articles under reply, Messrs. McDougal and Lans, have, like McClure, essayed to show that the treaty and the executive agreement are interchangeable, and, since executive agreements are simpler to conclude, they advocate disregarding as obsolete the treaty-making power, requiring, as it does, the consent of two thirds of the Senate, and substituting for it the use of the executive agreement. In that demand they differ radically from the constitutional conclusions which the writer, as well as many other students of the subject, have reached. To give their proposal a more “democratic” tinge, the authors propose what ...


Shall The Executive Agreement Replace The Treaty, Edwin Borchard Jan 1944

Shall The Executive Agreement Replace The Treaty, Edwin Borchard

Faculty Scholarship Series

In recent years many political leaders and publicists have sought to prove that the treaty-making process, requiring the "undemocratic." valid and desirable preferably without congressional approval or, by a majority of Congress. 1300 executive agreements have been concluded history, as contrasted 900 i8 that up to 1928 only 15 for good reasons; treaties have been amended by have benefited the nation.

BASES OF THE PROPOSALS FOR CHANGE

The recent proposals for a change in the Constitution, either with or without benefit of a constitutional amendment, have their origin in several grievances and are said to derive moral support from several ...


State Indemnity For Errors Of Criminal Justice, Edwin Borchard Jan 1941

State Indemnity For Errors Of Criminal Justice, Edwin Borchard

Faculty Scholarship Series

All too frequently the public is shocked by the news that Federal or State authorities have convicted and imprisoned a person subsequently proved to have been innocent of any crime. These accidents in the administration of the criminal law happen either through an unfortunate concurrence of circumstances or perjured testimony or are the result of mistaken identity, the conviction having been obtained by zealous prosecuting attorneys on circumstantial evidence. In an earnest effort to compensate in some measure the victims of these miscarriages of justice, Congress in May 1938 enacted a law "to grant relief to persons erroneously convicted in ...


Relation Between International Law And Municipal Law, Edwin Borchard Jan 1940

Relation Between International Law And Municipal Law, Edwin Borchard

Faculty Scholarship Series

Recent events on this continent make it seem appropriate once more to discuss the much – debated question of the relation between international law and municipal law. For one school, the dualists, municipal law prevails in case of conflict; for the other school, the monists international law prevails. There are two special features about the debate which warrant mention: first, that while the disputants do not widely differ in the ultimate solution of practical problems, they do differ considerably in their major premises and in the resulting theories; and second, that the attempt of various countries on occasion to escape the ...


Supreme Court And Private Rights, Edwin Borchard Jan 1938

Supreme Court And Private Rights, Edwin Borchard

Faculty Scholarship Series

Some of the social-political theories which influenced the framers of the Constitution were derived from Locke, Hume, Harrington, Coke and Blackstone. These men were less concerned with forms of government than with the relation between society as a whole and its individual members. They were sure that the individual possessed certain indefeasible, primordial rights and that government was designed to protect these rights against encroachment by the state or by classes within it. Perhaps the most important of these private rights was that of property, associated by Locke with liberty and often identified with it.' Thus, the effort of the ...


Taney's Influence On Constitutional Law, Edwin Borchard Jan 1936

Taney's Influence On Constitutional Law, Edwin Borchard

Faculty Scholarship Series

The hundredth anniversary of the elevation of Roger Brooke Taney to the post of Chief Justice of the Supreme Court affords a fitting occasion to review the significance of his judicial services to the nation and to American constitutional law. A re-examination of his life work in the perspective of history indicates how unwise it often is to form rigid judgments on men and events in the excitement of contemporary emotion, for the harsh opinions which Taney evoked by his decisions on the slavery question have been tempered in the detached light reason. The historical cloud under which his name ...


Justiciability, Edwin Borchard Jan 1936

Justiciability, Edwin Borchard

Faculty Scholarship Series

It might be supposed that justiciability, the very foundation of the judicial function, would be a matter on which courts could hardly differ. Yet there seems to be the greatest confusion among the courts as to when an issue is and is not susceptible of judicial decision. This is largely due to a devotion to phrases and symbols which make historical investigation and theoretical analysis seem an unnecessary encroachment on the judicial prerogative. The very system of stare decisis invites courts to relieve themselves of the necessity of thinking through again ostensible propositions which seem to have once received the ...


Protection Of Citizens Abroad And Change Of Original Nationality, Edwin Borchard Jan 1934

Protection Of Citizens Abroad And Change Of Original Nationality, Edwin Borchard

Faculty Scholarship Series

Precedent and time are the creators and preservers of customary law. So strong is the force of habit in human behavior that man in doubt or distress instinctively turns to past experience to see how his forbears dealt with similar problems. The law, which is the cement holding together the social structure, is, in its evolution as a conservative force, of necessity driven to search for precedents and to profit by them in building certainty and thereby security. Without landmarks there is no system; and for the very reason that international law is deficient in its lack of a legislature ...


Judicial Relief For Peril And Insecurity, Edwin Borchard Jan 1932

Judicial Relief For Peril And Insecurity, Edwin Borchard

Faculty Scholarship Series

In the United States, we are not accustomed to consider the theory of procedure as of profound importance. Possibly the extraordinary technicality of American procedure by reason of which substantive issues are so often relegated to practical oblivion by procedural tactics is in part responsible. At all events, the unsystematic and empirical method of embarking upon and concluding litigation seems to have developed a frame of mind somewhat indifferent to the theoretical function of the judicial process. For example, down to very recent days Justices of the United States Supreme Court gave expression to the view, now happily repudiated, that ...


Judicially Non-Enforcible Provisions Of Constitutions, Walter F. Dodd Jan 1931

Judicially Non-Enforcible Provisions Of Constitutions, Walter F. Dodd

Faculty Scholarship Series

In the constitutional law of the United States there is a natural tendency
to emphasize the judicial enforcibility of constitutional restrictions upon
legislative action. This field of our law tends thus to give primary weight
to a technical analysis of judicial decisions, at the expense of a consideration
of the wisdom and expediency of legislative and executive action.
Moreover, it largely overlooks a relatively large field of constitutional regulation
not supplemented by judicial enforcibility. We often compare to our
advantage the system of judicially enforcible constitutions with that of
many other countries in which written constitutions are not judicially enforcible ...


The Uniform Act On Declaratory Judgments, Edwin Borchard Jan 1921

The Uniform Act On Declaratory Judgments, Edwin Borchard

Faculty Scholarship Series

The national conference of Commissioners on Uniform State Laws at its session in St. Louis in August, 1920, approved the first draft of a Uniform Act on Declaratory Judgments. At the next session of the Conference in 1921 the Act will probably receive final approval and be recommended to legislatures for enactment. The importance of the recommendations of this August body in promoting the enactment of legislation in our states warrants some comment upon the draft they have approved.