Legal History Commons^™

Slavery And The History Of Congress's Enumerated Powers, Jeffrey Schmitt

Arkansas Law Review

In his first inaugural address, President Abraham Lincoln declared, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.” Like virtually all Americans before the Civil War, Lincoln believed in what historians call the “national consensus” on slavery. According to this consensus, Congress’s enumerated powers were not broad enough to justify any regulation of slavery within the states. Legal scholars who support the modern reach of federal powers have thus conventionally argued …

Put A Cork In It: The Use Of H.R. 161 To End Direct Wine Shipping Throughout The States Once And For All, Victoria H. Jones

Journal of Food Law & Policy

Due to Congress' recent agenda, oenophiles throughout the country are up in arms about the possible threat to their beloved wine. Wine lovers and other alcohol enthusiasts face the very real fear that access to their favorite products may soon be heavily restricted. This is in large part attributed to the fact that House Resolution 1161 would effectively change the ways in which states regulate alcohol shipment. The possible implications of this bill range from the forced shutdown of many wineries and distilleries due to lack of funding, to the smaller effects of regulation such as the inability of customers …

Evaluating Originalism: Commerce And Emoluments, John Vlahoplus

St. John's Law Review

(Excerpt)

This Article suggests that originalist theories share a core focus that meaningfully competes with pluralist theories. The contest is real and appears in centuries of debates within Anglo-American and civil law. The Article locates the Anglo-American origins of originalism in a novel seventeenth-century method of legal interpretation used to achieve a specific political end: to stifle opposition to the union of Scottish and English subjects of King James after his accession to the English crown in 1603. It details the novel method and the competing traditional method of English legal interpretation. It then evaluates originalist interpretations of the Commerce …

Physical Presence Is In No Wayfair!: Addressing The Supreme Court’S Removal Of The Physical Presence Rule And The Need For Congressional Action, Claire Shook

Dickinson Law Review (2017-Present)

The Commerce Clause of Article I grants Congress the power to regulate commerce. In the past, an entity had to have a physical presence in a state for that state to impose taxes on the entity. Due to the changing landscape of online businesses, the U.S. Supreme Court decided in South Dakota v. Wayfair in June 2018 to remove the physical presence rule as it applied to the Commerce Clause analysis of state taxation. The Wayfair decision’s ramification is that states can now impose taxes on businesses conducting sales online without having any physical presence in those states. While the …

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

Michigan Law Review First Impressions

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.

Constitutional Law—Commerce Clause—California Takes A Hit: The Supreme Court Upholds Congressional Authority Over The State-Approved Use Of Medicinal Marijuana. Gonzales V. Raich, 545 U.S. 1 (2005)., Rick Behring Jr.

University of Arkansas at Little Rock Law Review

No abstract provided.

Introduction: A Tale Of (At Least) Two Federalisms, Denise C. Morgan

NYLS Law Review

No abstract provided.

The Future Of Federalism? Pierce County V. Guillen As A Case Study, Lynn A. Baker

NYLS Law Review

No abstract provided.

Laws As Treaties?: The Constitutionality Of Congressional-Executive Agreements, John C. Yoo

Michigan Law Review

Only twice in the last century, in 1919 with the Treaty of Versailles, and two years ago with the comprehensive Nuclear Test-Ban Treaty, has the Senate rejected a significant treaty sought by the President. In both cases, the international agreement received support from a majority of the Senators, but failed to reach the two-thirds supermajority required by Article II, Section 2, of the Constitution. The failure of the Versailles Treaty resulted in a shattering defeat for President Wilson's vision of a new world order, based on collective security and led by the United States. Rejection of the Test-Ban Treaty amounted …

The Constitution's Forgotten Cover Letter: An Essay On The New Federalism And The Original Understanding, Daniel A. Farber

Michigan Law Review

At the end of the summer of 1787, the Philadelphia Convention issued two documents. One was the Constitution itself. The other document, now almost forgotten even by constitutional historians, was an official letter to Congress, signed by George Washington on behalf of the Convention. Congress responded with a resolution that the Constitution and "letter accompanying the same" be sent to the state legislatures for submission to conventions in each state.

The Washington letter lacks the detail and depth of some other evidence of original intent. Being a cover letter, it was designed only to introduce the accompanying document rather than …