Legal History Commons^™

The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman

Articles

In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or …

Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra

Thiago Luís Santos Sombra

This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.

New York's Statutory Bill Of Rights: A Constitutional Coelacanth, Robert Emery

Touro Law Review

No abstract provided.

Commentary: Was The Bill Of Rights Irrelevant To Nineteenth-Century State Criminal Procedure?, Carolyn B. Ramsey

Publications

No abstract provided.

Prophets, Priests, And Kings: John Milton And The Reformation Of Rights And Liberties In England, John Witte Jr.

Faculty Articles

In this Article, I focus on the development of rights talk in the pre-Enlightenment Protestant tradition. More particularly, I show how early modem Calvinists-those Protestants inspired by the teachings of Genevan reformer John Calvin (1509-1564)-developed a theory of fundamental rights as part and product of a broader constitutional theory of resistance and military revolt against tyranny. With unlimited space, I would document how various Calvinist groups from 1550 to 1700 helped to define and defend each and every one of the rights that would later appear in the American Bill of Rights and how these Calvinists condoned armed revolution to …

Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Championed on the Supreme Court by Justices Scalia and Thomas and championed in academia most prominently by Professor Akhil Amar, textualism has in the past twenty years emerged as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning and, in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This article uses Professor …

The Lost Original Meaning Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

This article presents previously unrecognized evidence regarding the original meaning of the Ninth Amendment. Obscured by the contemporary assumption that the Ninth Amendment is about rights while the Tenth Amendment is about powers, the historical roots of the Ninth Amendment can be found in the state ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power. James Madison's initial draft of the Ninth Amendment expressly adopted the language suggested by the state conventions and he insisted the final draft expressed the same rule of construction desired by the states. In an episode previously unnoticed by scholars, …

Speech: The Bill Of Rights, Garrett Epps

All Faculty Scholarship

The Bill of Rights is a much more fortuitous addition to the Constitution than many people imagine. The tired delegates at Philadelphia were unable to make the final effort to frame a bill of rights, and their failure nearly caused the collapse of ratification. When the First Congress met, James Madison took responsibility for making the new government live up to the implied pledge made during ratification to provide a partial list, drawn from the historic rights on English subjects. Not all Madison's proposed amendments were adopted however. The work of adumbrating the full scope of liberty under the Constitution …

When Constitutional Worlds Colide: Resurrecting The Framers' Bill Of Rights And Criminal Procedure, George C. Thomas Iii

Michigan Law Review

For two hundred years, the Supreme Court has been interpreting the Bill of Rights. Imagine Chief Justice John Marshall sitting in the dim, narrow Supreme Court chambers, pondering the interpretation of the Sixth Amendment right to compulsory process in United States v. Burr. Aaron Burr was charged with treason for planning to invade the Louisiana Territory and create a separate government there. To help prepare his defense, Burr wanted to see a letter written by General James Wilkinson to President Jefferson. In ruling on Burr's motion to compel disclosure, Marshall departed from the literal language of the Sixth Amendment - …

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 …

Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel

Articles

When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …

The Trial Of John Peter Zenger: An Account, Douglas O. Linder

Faculty Works

No country values free expression more highly than does the United States, and no case in American history stands as a greater landmark on the road to protection for freedom of the press than the trial of a German immigrant printer named John Peter Zenger. On August 5, 1735, twelve New York jurors, inspired by the eloquence of the best lawyer of the period, Andrew Hamilton, ignored the instructions of the Governor's hand-picked judges and returned a verdict of Not Guilty on the charge of publishing seditious libels. The Zenger trial is a remarkable story of a divided Colony, the …

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 …

Treaty-Making And The Nation: The Historical Foundations Of The Nationalist Conception Of The Treaty Power, David M. Golove

Michigan Law Review

Characteristic of the most enduring constitutional controversies is a clash between fundamental but ultimately irreconcilable principles. Unable to synthesize opposing precepts, we visit and revisit certain issues in an endless cycle. Each generation marches forward heedless, and sometimes only dimly aware, of how many times the battle has already been fought. Even the peace of exhaustion achieves only a temporary respite. The abiding controversy over the relationship between the treaty power of the national government and the legislative powers of the states is paradigmatic in this respect. Beginning as early as in the first debate over ratification of the Articles …

The Rights Of The Accused In A 'Crime Crisis', Yale Kamisar

Book Chapters

"I grieve for my country to say that the administration of the criminal law in all the states in the Union (there may be one or two exceptions) is a disgrace to our civilization .... The institution of trial by jury has come to be regarded as such a fetish in our country that state legislatures have exalted the power of the jury and diminished the power of the court .... The counsel for the defense, relying on the diminished power of the court, creates, by dramatic art and by harping on the importance of unimportant details, a false atmosphere …

The Court And The Changing Constitution: A Discussion, Carl Sividorski, James Gardner, Barry Latzer, Peter Galie

Touro Law Review

No abstract provided.

The Political Process As Final Solution, Charles M. Freeland

Indiana Law Journal

No abstract provided.

The Constitution's Accommodation Of Social Change, Philip A. Hamburger

Michigan Law Review

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law - text and interpretation - to accommodate such developments?

The effect of social change upon constitutional law was an issue the framers and ratifiers frequently discussed. For example, when AntiFederalists complained of the Constitution's failure to protect the jury trial in civil cases, Federalists responded that a change of circumstances might, …

From The Great Law Of Peace To The Constitution Of The United States: A Revision Of America's Democratic Roots, Gregory Schaaf

American Indian Law Review

No abstract provided.

Constitutional Opinions: Aspects Of The Bill Of Rights, Kenneth F. Sparks

Michigan Law Review

A Review of Constitutional Opinions: Aspects of the Bill of Rights by Leonard W. Levy

No State Shall Abridge: The Fourteenth Amendment And The Bill Of Rights, Mark A. Grannis

Michigan Law Review

A Review of No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights by Michael Kent Curtis

Selective Incorporation Revisited, Jerold H. Israel

Articles

In June 1960 Justice Brennan's separate opinion in Ohio ex re. Eaton v. Price' set forth what came to be the doctrinal foundation of the Warren Court's criminal procedure revolution. Justice Brennan advocated adoption of what is now commonly described as the "selective incorporation" theory of the fourteenth amendment. That theory, simply put, holds that the fourteenth amendment's due process clause fully incorporates all of those guarantees of the Bill of Rights deemed to be fundamental and thereby makes those guarantees applicable to the states. During the decade that followed Ohio ex re. Eaton v. Price, the Court found incorporated …

Searching For The Intent Of The Framers Of Fourteenth Amendment , Robert J. Kaczorowski

Faculty Scholarship

IN 1946 JUSTICE HUGO BLACK DECLARED that one of the objects of the fourteenth amendment was to apply the Bill of Rights to the States. He was confident that an analysis of the intent of the framers of the amendment would support his assertion. A few years later the Supreme Court requested such an investigation, but when the analysis was made and the results presented to it, the Supreme Court concluded that the framers' intent could not be determined. The uncertainty surrounding the intent of the framers of the fourteenth amendment has had profound implications on the application of that …

Book Reviews, Robert J. Harris (Reviewer), John Raeburn Green (Reviewer), H. C. Nixon (Reviewer)

Vanderbilt Law Review

----------------------------------- Book Reviews ----------------------------------

The Forgotten Ninth Amendment

By Bennett B. Patterson

Indianapolis: The Bobbs-Merrill Company, 1955. Pp. ix, 217. $4.00.

reviewer: Robert J. Harris

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The Birth of the Bill of Rights, 1776-1791

By Robert Allen Rutland

Chapel Hill: University of North Carolina Press, 1955. Pp. vii,243. $5.00.

reviewer: John Raeburn Green

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James Wilson: Founding Father, 1742-1798

By Charles Page Smith

Chapel Hill: University of North Carolina Press, 1956. Pp. xii, 426.$7.50.

reviewer: H. C. Nixon

Thompson: Magna Carta, Its Role In The Making Of The English Constitution, 1300-1629., Michigan Law Review

Michigan Law Review

A Review of MAGNA CARTA, Its Role in the Making of the English Constitution, 1300-1629. By Faith Thompson.

Constitutional Law--Due Process And The Bill Of Rights--Self-Incrimination, F. William Hutchinson

Michigan Law Review

In the course of evolving workable doctrines which give substance and meaning to the skeletal phrase "due process of law" as used in the Fourteenth Amendment to limit state action, the Supreme Court has frequently been called on to determine the scope of the several prohibitions and guarantees of the Bill of Rights of the federal Constitution. This general problem, and more particularly the application of the Fifth Amendment self-incrimination clause to state criminal proceedings, was again presented in a recent case and resulted in a sharp division of opinion within the Court.

A Proposal For Co-Operative Research On The Bill Of Rights, Jerome Hall

Articles by Maurer Faculty

No abstract provided.

Political Theory And Practice, Everett S. Brown

Michigan Law Review

A review of THE DEVELOPMENT OF AMERICAN POLITICAL THOUGHT. A DOCUMENTARY HISTORY. By J. Mark Jacobson, Ph.D.