Legal History Commons^™

Justice John Marshall Harlan: Professor Of Law, Brian L. Frye, Josh Blackman, Michael Mccloskey

Law Faculty Scholarly Articles

From 1889 to 1910, while serving on the United States Supreme Court, the first Justice John Marshall Harlan taught at the Columbian College of Law, which became the George Washington University School of Law. For two decades, he primarily taught working-class evening students in classes as diverse as property, torts, conflicts of law, jurisprudence, domestic relations, commercial law, evidence-and most significantly-constitutional law.

Harlan's lectures on constitutional law would have been lost to history, but for the enterprising initiative-and remarkable note-taking-of one of Harlan's students, George Johannes. During the 1897-98 academic year, George Johannes and a classmate transcribed verbatim the twenty-seven …

Justice John Marshall Harlan: Lectures On Constitutional Law, 1897-98, Brian L. Frye, Josh Blackman, Michael Mccloskey

Law Faculty Scholarly Articles

From 1889 to 1910, while serving on the United States Supreme Court, the first Justice John Marshall Harlan taught at the Columbian College of Law, which later became The George Washington School of Law. During the 1897–1898 academic year, one of Harlan’s students, George Johannes, along with a classmate, transcribed verbatim the twenty-seven lectures Justice Harlan delivered on constitutional law. In 1955, Johannes sent his copy of the transcripts to the second Justice Harlan, who eventually deposited them in the Library of Congress.

To create this annotated transcript of Justice Harlan’s lectures, Professor Frye purchased a microfilm copy of Johannes’s …

Pre-Constitutional Law And Constitutions: Spanish Colonial Law And The Constitution Of Cádiz, M C. Mirow

Faculty Publications

This article contributes to the intellectual and legal history of this constitutional document. It also provides a close study of how pre-constitutional laws are employed in writing constitutions. It examines the way Spanish colonial law, known as "derecho indiano" in Spanish, was used in the process of drafting the Constitution and particularly the way these constitutional activities and provisions related to the Americas. The article asserts that this pre-constitutional law was used in three distinct ways: as general knowledge related to the Americas and their institutions; as a source for providing a particular answer to a specific legal question; and …

The “Unwritten Constitution” And Unwritten Law, Stephen E. Sachs

Faculty Scholarship

America’s Unwritten Constitution is a prod to the profession to look for legal rules outside the Constitution’s text. This is a good thing, as outside the text there’s a vast amount of law—the everyday, nonconstitutional law, written and unwritten, that structures our government and society. Despite the book’s unorthodox framing, many of its claims can be reinterpreted in fully conventional legal terms, as the product of the text’s interaction with ordinary rules of law and language.

This very orthodoxy, though, may undermine Akhil Amar’s case that America truly has an “unwritten Constitution.” In seeking to harmonize the text with deep …

The Anomaly Of Executions: The Cruel And Unusual Punishments Clause In The 21st Century, John Bessler

All Faculty Scholarship

This Article describes the anomaly of executions in the context of the U.S. Supreme Court’s Eighth Amendment jurisprudence. While the Supreme Court routinely reads the Cruel and Unusual Punishments Clause to protect prisoners from harm, the Court simultaneously interprets the Eighth Amendment to allow inmates to be executed. Corporal punishments short of death have long been abandoned in America’s penal system, yet executions — at least in a few locales, heavily concentrated in the South — persist. This Article, which seeks a principled and much more consistent interpretation of the Eighth Amendment, argues that executions should be declared unconstitutional as …