Legal History Commons^™

American Constitutionalism: Volume Ii: Rights & Liberties, Howard Gillman, Mark Graber, Keith Whittington

Mark Graber

Constitutionalism in the United States is not determined solely by decisions made by the Supreme Court. Moving beyond traditional casebooks, renowned scholars Howard Gillman, Mark A. Graber, and Keith E. Whittington take a refreshingly innovative approach in American Constitutionalism. Organized according to the standard two-semester sequence--in which Volume I covers Structures of Government and Volume II covers Rights and Liberties--this text is unique in that it presents the material in a historical organization within each volume, as opposed to the typical issues-based organization.

Schwartz: Comment On Mathias, Herman Schwartz

Herman Schwartz

No abstract provided.

Free Will Paradigms, Kent Greenfield

Kent Greenfield

One of the iconic issues in American law and politics is the question of free will—sometimes known as agency, choice, or autonomy, or the absence of duress, coercion, and compulsion. In politics, whether one is liberal or conservative, we balk at government limitations on choice and fight those limitations with legal arguments about rights and political rhetoric about freedom. Liberals demand access to abortions, want the ability to purchase medical marijuana, and bristle at pat-down searches before boarding a plane. Conservatives dislike requirements to buy health insurance or pay taxes, rail against limits on gun ownership and school prayer, and …

Invisible Federalism And The Electoral College, Derek Muller

Derek T. Muller

What role do States have when the Electoral College disappears? With the enactment of the National Popular Vote on the horizon and an imminent presidential election in which a nationwide popular vote determines the winner, States would continue to do what they have done for hundreds of years — administer elections. The Constitution empowers States to decide who votes for president, and States choose who qualifies to vote based on factors like age or felon status. This power of States, a kind of “invisible federalism,” is all but ignored in Electoral College reform efforts. In fact, the power of the …

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 …

Washington Was Right: The Supreme Court Could Have Intervened To Interpret French Treaties, Kevin P. Chapman

Kevin P. Chapman

In the early days of his presidency, George Washington faced his first international crisis when French Ambassador Genet demanded that the United States honor its treaty obligations and provide support to the new French Republic in its ongoing war with Great Britain. Concerned about the legal effect that the French Revolution had on the viability of these obligations, Washington asked the Supreme Court to render an opinion. Chief Justice John Jay replied that the Constitution did not authorize the Supreme Court to render advisory opinions.

If Jay was correct, why did Washington, who presided over the very convention that produced …