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Articles 1 - 16 of 16
Full-Text Articles in Legal History
The Line-Item Veto: The Best Response When Congress Passes One Spending “Bill” A Year, L. Gordon Crovitz
The Line-Item Veto: The Best Response When Congress Passes One Spending “Bill” A Year, L. Gordon Crovitz
Pepperdine Law Review
No abstract provided.
Montesquieu's Theory Of Government And The Framing Of The American Constitution , Matthew P. Bergman
Montesquieu's Theory Of Government And The Framing Of The American Constitution , Matthew P. Bergman
Pepperdine Law Review
No abstract provided.
Milking The New Sacred Cow: The Supreme Court Limits The Peremptory Challenge On Racial Grounds In Powers V. Ohio And Edmonson V. Leesville Concrete Co., Bradley R. Kirk
Milking The New Sacred Cow: The Supreme Court Limits The Peremptory Challenge On Racial Grounds In Powers V. Ohio And Edmonson V. Leesville Concrete Co., Bradley R. Kirk
Pepperdine Law Review
No abstract provided.
Images Of Men In Feminist Legal Theory , Brian Bendig
Images Of Men In Feminist Legal Theory , Brian Bendig
Pepperdine Law Review
No abstract provided.
Due Process As Separation Of Powers, Nathan S. Chapman, Michael W. Mcconnell
Due Process As Separation Of Powers, Nathan S. Chapman, Michael W. Mcconnell
Scholarly Works
From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive due process” have obscured the way that many American lawyers and courts understood due process to limit the legislature from the Revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was …
Race And Constitutional Law Casebooks: Recognizing The Proslavery Constitution, Juan F. Perea
Race And Constitutional Law Casebooks: Recognizing The Proslavery Constitution, Juan F. Perea
Michigan Law Review
Federalist No. 54 shows that part of Madison's public defense of the Constitution included the defense of some of its proslavery provisions. Madison and his reading public were well aware that aspects of the Constitution protected slavery. These aspects of the Constitution were publicly debated in the press and in state ratification conventions. Just as the Constitution's protections for slavery were debated at the time of its framing and ratification, the relationship between slavery and the Constitution remains a subject of debate. Historians continue to debate the centrality of slavery to the Constitution. The majority position among historians today appears …
Building A Nation From Thirteen States: The Constitutional Convention And Preemption, Edward J. Larson
Building A Nation From Thirteen States: The Constitutional Convention And Preemption, Edward J. Larson
Pepperdine Law Review
This article is adapted from a talk Professor Larson gave at Pepperdine’s symposium on federal preemption of state tort law - the problem of medical drugs and devices. Professor Larson begins with a discussion of the Constitutional Convention and James Madison’s role in the creation of the U.S. Constitution. He relates how fifteen resolutions, developed by Madison and the other Virginia delegates, became known as the Virginia Plan, and served as the foundation for the Constitution. Professor Larson continues by examining Madison’s notes of the Convention. Specifically he shares what the notes relate about the deliberations at the Convention regarding …
States' Rights And State Standing, Stephen I. Vladeck
States' Rights And State Standing, Stephen I. Vladeck
University of Richmond Law Review
No abstract provided.
Plus Or Minus One: The Thirteenth And Fourteenth Amendments, Mark A. Graber
Plus Or Minus One: The Thirteenth And Fourteenth Amendments, Mark A. Graber
Mark Graber
The consensus that the Fourteenth Amendment incorporates the Thirteenth Amendment has come under sharp criticism in recent years. Several new works suggest that the Thirteenth Amendment, properly interpreted, protects some substantive rights not protected by the Fourteenth Amendment. Some of this scholarship is undoubtedly motivated by an effort to avoid hostile Supreme Court precedents. Nevertheless, more seems to be going on than mere litigation strategy. Scholars detected different rights and regime principles in the Thirteenth Amendment than they find in the Fourteenth Amendment. The 2011 Maryland Constitutional Law Schoomze, to which this is an introduction, provided an opportunity for law …
The Constitution Of Cádiz In Florida, M C. Mirow
The Constitution Of Cádiz In Florida, M C. Mirow
Faculty Publications
The article explores the vibrant constitutional community that existed in St. Augustine and the province of East Florida in the final decade of Spanish control of the area. Based on relatively unexplored primary sources, it reveals a great deal of unknown information about the importance of the Constitution in Florida immediately before the territory was transferred to the United States. The article provides full description of the Constitution's promulgation in 1812 and a second promulgation of the Constitution in 1820 (something unknown in the general literature). It also addresses the construction of the St. Augustine monument to the Constitution erected …
The Founders’ Hermeneutic: The Real Original Understanding Of Original Intent, Robert G. Natelson
The Founders’ Hermeneutic: The Real Original Understanding Of Original Intent, Robert G. Natelson
Robert G. Natelson
This Article addresses whether the American Founders expected evidence of their own subjective views to guide future interpretation of the U.S. Constitution. The Article considers a range of evidence largely overlooked or misunderstood in earlier studies, such as contemporaneous rules of legal interpretation, judicial use of legislative history, early American public debate, and pronouncements by state ratifying conventions. Based on this evidence, the Article concludes that the Founders were “original-understanding originalists.” This means that they anticipated that constitutional interpretation would be guided by the subjective understanding of the ratifiers when such understanding was coherent and recoverable and, otherwise, by the …
A Republic, Not A Democracy? Initiative, Referendum, And The Constitution's Guarantee Clause, Robert G. Natelson
A Republic, Not A Democracy? Initiative, Referendum, And The Constitution's Guarantee Clause, Robert G. Natelson
Robert G. Natelson
This article debunks the myth, first arising in the 1840s, that the Founders sharply distinguished between a "republic" and a "democracy." It explains that by a "republic," most of the Founders meant a government controlled by the citizenry, following the rule of law, and without a king. Accordingly, state provisions for initiative and referendum are fully consistent with the Constitution's requirement that each state have a republican form of government; in fact, most of the governments the Founders called "republics" had featured analogous forms of direct democracy.
Paper Money And The Original Understanding Of The Coinage Clause, Robert G. Natelson
Paper Money And The Original Understanding Of The Coinage Clause, Robert G. Natelson
Robert G. Natelson
Over a century ago, the Supreme Court decided the Legal Tender Cases, holding that Congress could authorize legal tender paper money in addition to metallic coin. In recent years, some commentators have argued that this holding was incorrect as a matter of original understanding or original meaning, but that any other holding would be absolutely inconsistent with modern needs. They further argue that the impracticality of functioning without paper money demonstrates that originalism is not a workable method of constitutional interpretation. Those who rely on the Legal Tender Cases to discredit originalism are, however, in error. This Article shows that …
Florida's First Constitution, M C. Mirow
Florida's First Constitution, M C. Mirow
Faculty Books
The central square of St. Augustine, Florida, the Plaza de la Constitución, is not named for the United States Constitution. Instead, its name comes from Florida’s first constitution, the Spanish Constitution of Cádiz of 1812. Daily political life in Florida’s Spanish colonial cities was governed by this document, and cities like St. Augustine ordered their activities around the requirements, rights, and duties expressed in this constitution. The Constitution of Cádiz was the first truly transatlantic constitution because it applied to the entire Spanish empire, of which St. Augustine and Pensacola were just a part. It was drafted by representatives from …
Bargained Justice: Plea Bargaining's Innocence Problem And The Brady Safety-Valve, Lucian Dervan
Bargained Justice: Plea Bargaining's Innocence Problem And The Brady Safety-Valve, Lucian Dervan
Lucian E Dervan
If any number of attorneys were asked in 2004 whether Lea Fastow’s plea bargain in the Enron case was constitutional, the majority would respond with a simple word – Brady. Yet while the 1970 Supreme Court decision Brady v. United States authorized plea bargaining as a form of American justice, the case also contained a vital caveat that has been largely overlooked by scholars, practitioners, and courts for almost forty years. Brady contains a safety-valve that caps the amount of pressure that may be asserted against defendants by prohibiting prosecutors from offering incentives in return for guilty pleas that are …
The Long And Winding Road From Monroe To Connick, Sheldon Nahmod
The Long And Winding Road From Monroe To Connick, Sheldon Nahmod
Sheldon Nahmod
In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view …