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Articles 1 - 27 of 27
Full-Text Articles in Law
Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz
Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz
Arkansas Law Review
On July 10, 1832, President Andrew Jackson issued the most famous and controversial veto in United States history. The bill in question was “to modify and continue” the 1816 “act to incorporate the subscribers to the Bank of the United States. This was to recharter of the Second Bank of the United States whose constitutionality was famously upheld in McCulloch v. Maryland. The bill was passed by Congress and presented to Jackson on July 4. Six days later, Jackson vetoed the bill. Jackson’s veto mortally wounded the Second Bank, which would forever close its doors four years later at the …
Free Speech In Wartime: Sedition Acts During The Presidencies Of John Adams And Woodrow Wilson, Juliana M. Hafner
Free Speech In Wartime: Sedition Acts During The Presidencies Of John Adams And Woodrow Wilson, Juliana M. Hafner
Honors College Theses
This paper analyzes two time eras in which the United States federal government created and passed two sedition acts: in 1798 with President John Adams and in 1918 with President Woodrow Wilson. Both ultimately affected American’s freedom of speech during wartime, as well as during times of peace. This analysis addresses the specific acts themselves, the overall political atmosphere in each time period, including who were considered the country’s “enemies,” in-depth consideration of one court case per era, the government and public reaction to the acts, and the overall impact that both eras had on the development of American Constitutionalism. …
The Origins And Meaning Of “Vacancies That May Happen During The Recess” In The Constitution’S Recess Appointments Clause, Robert G. Natelson
The Origins And Meaning Of “Vacancies That May Happen During The Recess” In The Constitution’S Recess Appointments Clause, Robert G. Natelson
Robert G. Natelson
There has been longstanding uncertainty about the meaning of “the Recess” and “Vacancies that may happen” in the Constitution’s Recess Appointments Clause. This Article finds that both “the Recess” and close variants of “Vacancies that may happen” were standard terms in Founding-Era legislative practice, and appear copiously in legislative records. Those records inform us that “the Recess” means only the intersession recess and that a vacancy “happens” only when it first arises.
The National Security State: The End Of Separation Of Powers, Michael E. Tigar
The National Security State: The End Of Separation Of Powers, Michael E. Tigar
Faculty Scholarship
No abstract provided.
The Clerks Of The Four Horsemen, Barry Cushman
The Clerks Of The Four Horsemen, Barry Cushman
Journal Articles
The names of Holmes clerks such as Tommy Corcoran and Francis Biddle, of Brandeis clerks such as Dean Acheson and Henry Friendly, and of Stone clerks such as Harold Leventhal and Herbert Wechsler ring down the pages of history. But how much do we really know about Carlyle Baer, Tench Marye, or Milton Musser? This article follows the interesting and often surprising lives and careers of the men who clerked for the Four Horsemen - Justices Van Devanter, McReynolds, Sutherland, and Butler. These biographical sketches confound easy stereotypes, and prove the adage that law, like politics, can make for strange …
Epilogue: Some Sober Second Thoughts, Christopher Hoebeke
Epilogue: Some Sober Second Thoughts, Christopher Hoebeke
Christopher H Hoebeke
No abstract provided.
The Road To Mass Democracy: Original Intent And The Seventeenth Amendment, Christopher Hoebeke
The Road To Mass Democracy: Original Intent And The Seventeenth Amendment, Christopher Hoebeke
Christopher H Hoebeke
Until 1913 and passage of the Seventeenth Amendment to the United States Constitution, US senators were elected by state legislatures, not directly by the people. Progressive Era reformers urged this revision in answer to the corruption of state "machines" under the dominance of party bosses. They also believed that direct elections would make the Senate more responsive to popular concerns regarding the concentrations of business, capital, and labor that in the industrial era gave rise to a growing sense of individual voicelessness. Popular control over the higher affairs of government was thought to be possible, since the spread of information …
The Paradox Of Popular Sovereignty: An Introductory Essay, Christopher Hoebeke
The Paradox Of Popular Sovereignty: An Introductory Essay, Christopher Hoebeke
Christopher H Hoebeke
No abstract provided.
The Clerks Of The Four Horsemen, Barry Cushman
The Clerks Of The Four Horsemen, Barry Cushman
Barry Cushman
The names of Holmes clerks such as Tommy Corcoran and Francis Biddle, of Brandeis clerks such as Dean Acheson and Henry Friendly, and of Stone clerks such as Harold Leventhal and Herbert Wechsler ring down the pages of history. But how much do we really know about Carlyle Baer, Tench Marye, or Milton Musser? This article follows the interesting and often surprising lives and careers of the men who clerked for the Four Horsemen - Justices Van Devanter, McReynolds, Sutherland, and Butler. These biographical sketches confound easy stereotypes, and prove the adage that law, like politics, can make for strange …
Some Varieties And Vicissitudes Of Lochnerism, Barry Cushman
Some Varieties And Vicissitudes Of Lochnerism, Barry Cushman
Barry Cushman
This article is a contribution to the Lochner Centennial Symposium at Boston University School of Law. Until recently, a consensus appeared to be emerging among constitutional historians concerning how best to interpret Lochner-era decisions involving Fifth and Fourteenth Amendment challenges to state and federal economic regulation. After decades during which the Court's jurisprudence had been characterized as the product of a reactionary judiciary's commitments to Social Darwinism and laissez-faire economics, more recent scholars had come to see the Court's police powers decisions as animated by what Professor Howard Gillman has called the principle of neutrality. On this view, the Court's …
The Structure Of Classical Public Law, Barry Cushman
The Structure Of Classical Public Law, Barry Cushman
Barry Cushman
Duncan Kennedy's The Rise and Fall of Classical Legal Thought circulated in manuscript for three decades before it was formally published in 2006. This essay reviews the book's treatment of Classical public law, focusing on its two principal contributions to the historiography of the subject: the concept of legal consciousness, and the structural analysis of constitutional doctrine.
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 …
The Structure Of Classical Public Law, Barry Cushman
The Structure Of Classical Public Law, Barry Cushman
Journal Articles
Duncan Kennedy's The Rise and Fall of Classical Legal Thought circulated in manuscript for three decades before it was formally published in 2006. This essay reviews the book's treatment of Classical public law, focusing on its two principal contributions to the historiography of the subject: the concept of legal consciousness, and the structural analysis of constitutional doctrine.
Some Varieties And Vicissitudes Of Lochnerism, Barry Cushman
Some Varieties And Vicissitudes Of Lochnerism, Barry Cushman
Journal Articles
This article is a contribution to the Lochner Centennial Symposium at Boston University School of Law. Until recently, a consensus appeared to be emerging among constitutional historians concerning how best to interpret Lochner-era decisions involving Fifth and Fourteenth Amendment challenges to state and federal economic regulation. After decades during which the Court's jurisprudence had been characterized as the product of a reactionary judiciary's commitments to Social Darwinism and laissez-faire economics, more recent scholars had come to see the Court's police powers decisions as animated by what Professor Howard Gillman has called the principle of neutrality. On this view, the Court's …
The Federalist Papers As Reliable Historical Source Material For Constitutional Interpretation, Seth Barrett Tillman
The Federalist Papers As Reliable Historical Source Material For Constitutional Interpretation, Seth Barrett Tillman
West Virginia Law Review
No abstract provided.
Attorney General Taney & The South Carolina Police Bill, H. Jefferson Powell
Attorney General Taney & The South Carolina Police Bill, H. Jefferson Powell
Faculty Scholarship
No abstract provided.
The Idea Of The Common Law In West Virginia Jurisprudential History: Morningstar V. Black & Decker Revisited, James Audley Mclaughlin
The Idea Of The Common Law In West Virginia Jurisprudential History: Morningstar V. Black & Decker Revisited, James Audley Mclaughlin
West Virginia Law Review
No abstract provided.
The Jurisprudence Of Tradition And Justice Scalia's Unwritten Constitution, J. Richard Broughton
The Jurisprudence Of Tradition And Justice Scalia's Unwritten Constitution, J. Richard Broughton
West Virginia Law Review
No abstract provided.
Remarks By U.S. Senator Robert C. Byrd The Constitution In Peril, Robert C. Byrd
Remarks By U.S. Senator Robert C. Byrd The Constitution In Peril, Robert C. Byrd
West Virginia Law Review
No abstract provided.
The Futility Of Campaign Finance Reform: A Historical Perspective, Christopher H. Hoebeke
The Futility Of Campaign Finance Reform: A Historical Perspective, Christopher H. Hoebeke
Christopher H Hoebeke
No abstract provided.
Democratizing The Constitution: The Failure Of The Seventeenth Amendment, Christopher H. Hoebeke
Democratizing The Constitution: The Failure Of The Seventeenth Amendment, Christopher H. Hoebeke
Christopher H Hoebeke
No abstract provided.
From The Corrupt Few To The Incompetent Many: Questionable Causes And Unintended Effects Of The Direct Election Of Senators, Christopher Hoebeke
From The Corrupt Few To The Incompetent Many: Questionable Causes And Unintended Effects Of The Direct Election Of Senators, Christopher Hoebeke
Christopher H Hoebeke
, August 31-September 3, 1995.
American Indian Influence On The United States Constitution And Its Framers, Robert J. Miller
American Indian Influence On The United States Constitution And Its Framers, Robert J. Miller
American Indian Law Review
No abstract provided.
The Incompleat Burkean: Bruce Ackerman's Foundation For Constitutional History, Eben Moglen
The Incompleat Burkean: Bruce Ackerman's Foundation For Constitutional History, Eben Moglen
Faculty Scholarship
With this book, the first in a projected series of at least three volumes, Bruce Ackerman confirms what attentive readers of his law review articles of the past ten years have already known-he is the most original and important writer on constitutional theory in the contemporary English-speaking world. We the People: Foundations, despite its informal, sometimes overly talky style, is not an easy book. Filled to the brim, even to overflowing, and containing many gestures in the direction of arguments to be made in future volumes rather than the substance of the arguments themselves, it presents both the casual reader …
Book Review. The Magic Mirror: Law In American History By Kermit L. Hall, Michael Grossberg
Book Review. The Magic Mirror: Law In American History By Kermit L. Hall, Michael Grossberg
Articles by Maurer Faculty
No abstract provided.
Original Understanding And The Constitution, Michael E. Tigar
Original Understanding And The Constitution, Michael E. Tigar
Faculty Scholarship
No abstract provided.
Book Review. The Constitutionalism Of "The Common-Law Mind", Stephen A. Conrad
Book Review. The Constitutionalism Of "The Common-Law Mind", Stephen A. Conrad
Articles by Maurer Faculty
This essay reviews the following: Constitutional History of the American Revolution, Vol. 1: The Authority of Rights by John Phillip Reid and Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607-1788 by Jack P. Greene.