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Full-Text Articles in Legal History
Saving The Constitution: Lincoln, Secession, And The Price Of Union, Craig S. Lerner
Saving The Constitution: Lincoln, Secession, And The Price Of Union, Craig S. Lerner
Michigan Law Review
The year is 1860. After failing to obtain, as he had expected, the Democratic Party nomination for President at its Charleston convention, Stephen Douglas abandons his candidacy. In the ensuing election, Democrat John C. Breckinridge of Kentucky edges Republican Abraham Lincoln. The official platform of the Democratic Party includes endorsement of the Dred Scott decision, slavery's expansion in the federal territories, rigorous enforcement of the Fugitive Slave Act, and elimination of the tariff. Abolitionists in New England are inconsolable. For several years, Henry Lloyd Garrison had advocated Northern secession, denouncing the Constitution as a "union with slaveholders," and "a covenant …
Taking Aim At An American Myth, Paul Finkelman
Taking Aim At An American Myth, Paul Finkelman
Michigan Law Review
Every American had a musket hanging over his fireplace at night, and by his side during the day. Like Cincinnatus, time and again Americans dropped their plows to shoulder their arms, to fight the Indians, the French, the Indians, the British, the Indians, the Mexicans, the Indians yet again, and then, from 1861 to 1865, each other. American men were comfortable with guns; they needed them and wanted them. They felt at home in woods, in search of food, or in defense of their homesteads. It is a story as old as our first pulp novels and earliest movies. It …
The Second Amendment: Structure, History, And Constitutional Change, David Yassky
The Second Amendment: Structure, History, And Constitutional Change, David Yassky
Michigan Law Review
A fierce debate about the Second Amendment has been percolating in academia for two decades, and has now bubbled through to the courts. The question at the heart of this debate is whether the Amendment restricts the government's ability to regulate the private possession of firearms. Since at least 1939 - when the Supreme Court decided United States v. Miller, its only decision squarely addressing the scope of the right to "keep and bear Arms" - the answer to that question has been an unqualified "no." Courts have brushed aside Second Amendment challenges to gun control legislation, reading the Amendment …
Constitutional Interpretation And Judicial Self-Restraint, Vincent M. Barnett Jr.
Constitutional Interpretation And Judicial Self-Restraint, Vincent M. Barnett Jr.
Michigan Law Review
The newly reconstituted Supreme Court of the United States has become the center of an earnest controversy with respect to the true role of the Court in constitutional interpretation. The general controversy is, of course, far from new. What makes it of more than ordinary significance is that the Court itself is revealing a tendency substantially to alter the extent, if not the nature, of judicial review. This tendency has not yet become clearly dominant, but it is apparent enough to shake the implicit faith in the Court of many of those to whom, before 1937, any criticism of the …
Freedom Of The Press And Of The Mails, Eberhard P. Deutsch
Freedom Of The Press And Of The Mails, Eberhard P. Deutsch
Michigan Law Review
It should be unnecessary to amend the Federal Constitution to accommodate the facilities of government to the needs of society, as those needs develop with the social and scientific advance of civilization. But the trend of legislative effort to reach beyond constitutional limits to satisfy fleeting economic or political expediencies, without regard for the vital distinction between sound and substance, and of courts to seek justification for such excursions, under the benefit of constitutional doubt due "solemn expressions of legislative will," may lead to highly dangerous situations. As this trend is permitted to reach extremes, the erasure of the well-defined …