Legal History Commons^™

A New Report Of Entick V. Carrington (1765), Christian Burset, T. T. Arvind

Journal Articles

The Supreme Court has described Entick v. Carrington (1765) as “the true and ultimate expression of constitutional law” for the Founding generation. For more than 250 years, judges and commentators have read that case for guidance about the rule of law, executive authority, and the original meaning of the Fourth and Fifth Amendments. But we have been reading a flawed version. This Article publishes, for the first time, a previously unknown manuscript report of Entick v. Carrington. We explain why this version is more reliable than other reports of the case, and how this new discovery challenges prevailing assumptions about …

Lessons From A Journey Through State Subnational Constitutional Law, James A. Gardner

Journal Articles

No abstract provided.

The Constitutional Convention And Constitutional Change: A Revisionist History, Matthew J. Steilen

Journal Articles

How do we change the Federal Constitution? Article V tells us that we can amend the Constitution by calling a national convention to propose changes and then ratifying those proposals in state conventions. Conventions play this role because they represent the people in their sovereign capacity, as we learn when we read McCulloch v. Maryland.

What is not often discussed is that Article V itself contains another mechanism for constitutional change. In fact, Article V permits both conventions and leg-islatures to be used for amendment, and, as it happens, all but one of the 27 amendments to the Constitution have …

The Security Court, Matthew J. Steilen

Journal Articles

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security by law and …

Book Review, Justin R. Huckaby

Journal Articles

In Conventional Wisdom: The Alternate Article V Mechanism for Proposing Amendments to the U.S. Constitution, John R. Vile discusses the thus-far unused Article V convention method of amending the U.S. Constitution. The book focuses on what an Article V convention could be and what parameters it might entail. Could such a convention be limited in scope, or must it be general in nature? Vile considers these questions and the literature behind them to develop his own interpretation of an Article V convention and how it should be implemented.

Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey

Journal Articles

For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism.

By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank …

Court-Packing And Compromise, Barry Cushman

Journal Articles

President Franklin D. Roosevelt’s 1937 Court-packing bill would have permitted him to appoint six additional justices to the Supreme Court, thereby expanding its membership to fifteen immediately. Throughout the ultimately unsuccessful campaign to enact the measure, Roosevelt was presented with numerous opportunities to compromise for a measure authorizing the appointment of fewer additional justices. The President rejected each of these proposals, and his refusal to compromise often has been attributed to stubbornness, overconfidence, or hubris. Yet an examination of the papers of Attorney General Homer S. Cummings reveals why FDR and his advisors believed that he required no fewer than …

Procedural Common Law, Amy Coney Barrett

Journal Articles

Debates about the common lawmaking power of the federal courts focus exclusively on substantive common law. But federal common law is not limited to matters of substance; it reaches matters of procedure as well. Federal law includes a robust body of what might be called procedural common law - common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations. This body of law includes many doctrines that are fixtures in the law of procedure and federal courts. For example, abstention, forum non conveniens, remittitur, stare decisis, and preclusion can all fairly be characterized …

Lochner, Liquor, And Longshoremen: A Puzzle In Progressive Era Federalism, Barry Cushman

Journal Articles

In 1890, the Supreme Court shocked and thrilled the civilized world with the announcement that dry states could not prohibit the sale of liquor shipped in from outside the state. So long as the out-of-state goods remained in their "original packages," the Court held they retained their character as interstate commerce subject only to federal regulation. The consequences for the cause of local sobriety were, predictably, catastrophic. The proliferation in temperance territory of "original package saloons," at which one could purchase liquor free from the superintendence of local liquor authorities, was appalling to dry eyes. Members of Congress immediately proposed …

Madison's Hope: Virtue, Self-Interest, And The Design Of Electoral Systems, James A. Gardner

Journal Articles

In recent years, perhaps no institution of American governance has been so thoroughly and consistently excoriated by legal theorists as the familiar American system of winner-take-all elections. The winner-take-all system is said to waste votes, lead to majority monopolization of political power, and cause the under representation and consequent social and economic subordination of political minorities. Some political scientists have attempted to defend winner-take-all systems on the ground that they perform better than PR in maximizing long-term collective and social interests. This article argues, in contrast, that winner-take-all electoral systems rest upon, and can be adequately defended, if at all, …

Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports

Journal Articles

When Justice Blackmun was nominated to the Court in 1970, Americans were consumed with the idea of crime control. In the 1968 presidential campaign, Richard Nixon had called the Supreme Court "soft on crime" and had promised to "put 'law and order' judges on the Court." While sitting on the Eighth Circuit, the Justice had "seldom struck down searches, seizures, arrests or confessions," and most of his opinions in criminal cases had "affirmed guilty verdicts and sentences." Thus, according to one commentator, Justice Blackmun seemed to be "exactly what Nixon was looking for: a judge who believed in judicial restraint, …

Lost Fidelities, Barry Cushman

Journal Articles

Owen Roberts was accused of a variety of things in 1937, but “fidelity” was not among them. Justice Harlan Fiske Stone and Professor Felix Frankfurter were among many who accused Roberts of performing, as Frankfurter put it, a jurisprudential “somersault” “incapable of being attributed to a single factor relevant to the professed judicial process.” To Frankfurter, it was “all painful beyond words,” and gave him “a sickening feeling which is aroused when moral standards are adulterated in a convent.” Yet when Roberts announced his retirement from the Court eight years later, Chief Justice Stone, along with now-Justices Frankfurter and Robert …

The Slavery Of Emancipation, Guyora Binder

Journal Articles

The Thirteenth Amendment abolishes the institution of slavery rather than freeing individual slaves. Yet it quickly came to stand for little more than granting universal rights to make labor contracts and to leave service. This article develops a distinction between abolishing an institution and reclassifying individuals within it. Drawing on the comparative history of slavery, it shows that the institution of slavery has generally included mechanisms for the manumission of slaves and their passage into a liminal status combining self-ownership with social subordination and relative isolation. A critical account of the Antelope litigation shows that proponents of mass manumission still …

Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder

Journal Articles

This article presents Francis Lieber’s 1839 treatise “Legal and Political Hermeneutics” as a surprisingly modern and pragmatic account of interpretation. It first explicates the two most important influences on Liber’s thought, the romantic philology of Friedrich Schleiermacher, and the institutional positivism of Whig jurists Story and Kent. It shows that both of these sources frankly acknowledged that interpretation is an institutional practice, organized by the evolving aims and customs of the institutions within which it took place. Both tended to view the writing and reading of texts as the deployment of linguistic conventions. Both movements thereby viewed meaning for all …

The Constitutional Theory Of The Fourth Amendment, Gerard V. Bradley

Journal Articles

This Article will, in large part, present its thesis regarding fourth amendment doctrine by employing, as an illustration, a recent application of the current approach by the Seventh Circuit Court of Appeals. In United States v. Torres, the Seventh Circuit held video surveillance constitutional and further found that the judiciary had the authority to issue warrants for such a technique. Although welcomed by prosecutors and law enforcement officials, this decision highlights the absurdity of the current interpretation of the reasonableness clause. Moreover, Torres provides a vehicle through which this Article's historical interpretation can be brought into focus under the cold …

Law And The Experience Of Politics In Late Eighteenth-Century North Carolina: North Carolina Considers The Constitution, Walter F. Pratt

Journal Articles

In 1788, delegates assembled in North Carolina to decide whether to ratify the Constitution. A debate erupted between Federalists and Anti-federalists regarding each Article of the then-drafted Constitution. This Article analyzes the debate, and proposes that the key difference was the function of the role of the law.

Imagining The Past And Remembering The Future: The Supreme Court's History Of The Establishment Clause, Gerard V. Bradley

Journal Articles

Our Framers through the Establishment Clause sought to prevent the government from preferring one religious sect to another. However, the Supreme Court in Everson v. Board of Education abandoned that meaning of nonestablishment and created a general prohibition on all nondiscriminatory aid to religion, a decision later reinforced in Lemon v. Kurtzman. This Article discusses the Founder’s worldview and looks at other Establishment Clause cases to illustrate that the historical evidence is inconsistent with Everson. Rather, the founders intended to assure that religion would be aided only on a nondiscriminatory, or sect-neutral, basis and does not stand for …

Professor Kurland, The Supreme Court And Political Science, Donald P. Kommers

Journal Articles

IN A SYMPOSIUM held at the Notre Dame Law School on February 29, 1964, on several constitutional amendments designed to limit the power of the Supreme Court, Professor Philip B. Kurland of the University of Chicago Law School read a terse and delightfully witty paper in which he compared the Supreme Court to Caesar, sieged on the one side by the modem forces of Brutus, and championed on the other side by the contemporary Mark Antonys. There was no doubt in Professor Kurland's mind that the efforts of conspirators like the Council of State Governments, not to mention its less …

Founding Fathers And The Natural Law: A Study Of The Source Of Our Legal Institutions, The, Clarence Emmett Manion

Journal Articles

Where did the Founding Fathers get the principles upon which they established our government? What was the source of their faith? The bedrock of their convictions? What was the political evolution of our Constitution? The legal philosophy of our Bill of Rights? The discussion of these questions by Dean Manion is timely for it is necessary now to make soundings and take bearings if the Ship of State is to continue on its true course. Whereas the Revolution of 1688 brought the doctrine of parliamentary sovereignty to England, the American colonists resisted that doctrine and adhered to the true natural …

Administrative Boards And Delegation Power, William Burns Lawless

Journal Articles

With the growth of American federalism and the passing of the doctrines of laissez faire as axioms of economic and political legal theory, the Congressional function magnified. Throughout the last decade the multiphased problems of Congress has necessitated the creation of administrative commissions to perform-the policies of the legislature. Congress continues to declare the law and determine the legal principle to control in given cases. In the same breath of legal creation it goes farther and provides for an administrator or commission to vitiate the doctrine set-out. The transfusion of power from the national legislature to the administrator promotes sensitive …

The Constitutionality Of New Deal Measures, Clarence Emmett Manion

Journal Articles

In this article, Clarence Manion warns that to honor the Constitution's form but not its substance is to essentially destroy the document. He opines that "Regulation of persons and things is never justified nor justifiable as an end in itself. Regulation for the sake of regulation is paternalism; but regulation as the only means for individual protection is a bulwark of our traditional American liberty. Regulation finds its only justification in the proof of the fact that it is a necessary means for adequate protection of the citizen's rights.

What Will Become Of Prohibition, Clarence Emmett Manion

Journal Articles

Because of the substantial minority support for Prohibition and the Eighteenth Amendment, this article suggests that it would difficult, if not impossible, to repeal the amendment despite the fact that 3 in 5 Americans would support its repeal. The article looks at potential options of lessening the impact of the Eighteenth Amendment, including removing penalties for it, repealing State enforcement acts, and forbidding nullification of search warrant requirements. Finally, it looks at the quality of liquor as a solution to an "unusually interesting" and "ultimately worthwhile" problem.

Proximate Sources Of The Constitution, Clarence Emmett Manion

Journal Articles

The average American who thinks of our Federal Document only in terms of the Philadelphia Convention may not have fully appreciated the fact that before the surrender of Cornwallis at Yorktown, every American State had already achieved its constitutional independence and had established its own organic law, by which it should not only remain free from the foreign dominion of Great Britain, but should also remain an indestructible unit in The American Federal System. He must remember that the "Articles of Confederation and Perpetual Union" which leagued the alleged sovereign and independent States, were in force at the time of …

Liberty And The Police Power, Clarence Emmett Manion

Journal Articles

The American citizen now has practically no rights of person or property that neither Congress nor the State legislature may not impair by legislation. The adoption of the Articles of Confederation and the Federal Constitution served merely to transfer to the Federal government certain powers formerly exercised by the individual States. When all individuals were protected in the exercise of their respective rights it was never supposed that the rights of the individual were to be protected or approached through the avenues of legislation dictated by majority opinions as to what is now and again for the "general good". The …

Shrinking Bill Of Rights, Clarence Emmett Manion

Journal Articles

The assertion of intrinsic, God given rights correlated with the decline of monarchical power. The United States’ understanding that all men and women are endowed with unalienable rights was a long and hard-fought conclusion. However, this article argues that the Bill of Rights has gradually changed from being the bold guardian of individual liberty originally envisioned. Ironically, this change can be attributed to the courts and the legislature.