Legal History Commons^™

Theorists' Belief: A Comment On The Moral Tradition Of American Constitutionalism, Jospeh Vining

Articles

The Moral Tradition of American Constitutionalism is one of those rare works that leads us to face, at the center of law and legal thought, the largest questions about human life and human purpose. There is a special reader's shudder, a certain gestural shift in the chair, reserved for that moment of realizing where one is being led-not to the edge, but to the center, so that the questions become insistent, and whatever we and others say and do in the face of them becomes our response to them.

California’S Proposition 187--Does It Mean What It Says? Does It Say What It Means? A Textual And Constitutional Analysis, Lolita K. Buckner Inniss

Publications

No abstract provided.

Government Lawyers And The New Deal, Neal Devins

Faculty Publications

No abstract provided.

Michigan's Proposed Prenatal Protection Act: Undermining A Woman's Right To An Abortion, Mark S. Kende

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Constitutional Fictions And Meritocratic Success Stories, Robin West

Georgetown Law Faculty Publications and Other Works

L.H. LaRue demonstrates in his book, Constitutional Law as Fiction, that, at least in the realm of constitutional law, there is no simple correspondence between fiction and falsehood, or fact and truth. Partial or fictive accounts of our constitutional history, even when they are riddled with inaccuracies, may state deep truths about our world, and accurate recitations of historical events may be either intentionally or unintentionally misleading in the extreme. According to LaRue, the Supreme Court engages in a form of storytelling or myth-making that goes beyond the inevitably partial narratives of fact and precedent. The Supreme Court also tells …

Constitutional Justice And Democracy, Michel Troper

Cardozo Law Review

The issue of the compatibility of constitutional justice and democracy is considered in a particular way in France, for reasons relating both to the history of the legal culture and tothe peculiarities of the Constitutional Council, the institution which reviews the constitutionality of legislation.

The Constitution's Forgotten Cover Letter: An Essay On The New Federalism And The Original Understanding, Daniel A. Farber

Michigan Law Review

At the end of the summer of 1787, the Philadelphia Convention issued two documents. One was the Constitution itself. The other document, now almost forgotten even by constitutional historians, was an official letter to Congress, signed by George Washington on behalf of the Convention. Congress responded with a resolution that the Constitution and "letter accompanying the same" be sent to the state legislatures for submission to conventions in each state.

The Washington letter lacks the detail and depth of some other evidence of original intent. Being a cover letter, it was designed only to introduce the accompanying document rather than …

The Constitutionality Of Legislative Supermajority Requirements: A Defense, John O. Mcginnis, Michael B. Rappaport

Articles

No abstract provided.

Oregon Constitution: A Survey Of Significant State Provisions, Oregon Law Institute, Susan M. Leeson, William F. Gary, Glenn Klein, Madelyn F. Wessel, Timothy J. Sercombe, W. Michael Gillette, David Schuman, David A. Ernst, Rex Armstrong, Jacob Tanzer, George A. Van Hoomissen, Charles F. Hinkle, Hans A. Linde

Oregon Law Institute, 1995

Course Materials from the October 13, 1995 Program in Portland

History's Stories, Stephan Landsman

Michigan Law Review

A Review of Stories of Scottsboro by James Goodman

Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder

Journal Articles

This article presents Francis Lieber’s 1839 treatise “Legal and Political Hermeneutics” as a surprisingly modern and pragmatic account of interpretation. It first explicates the two most important influences on Liber’s thought, the romantic philology of Friedrich Schleiermacher, and the institutional positivism of Whig jurists Story and Kent. It shows that both of these sources frankly acknowledged that interpretation is an institutional practice, organized by the evolving aims and customs of the institutions within which it took place. Both tended to view the writing and reading of texts as the deployment of linguistic conventions. Both movements thereby viewed meaning for all …

William Gardiner Hammond And The Lieber Revival, Paul D. Carrington

Cardozo Law Review

Francis Lieber's Legal and Political Hermeneutics was first published in serial form in 1837. Jacksonian populism was then at high water and American judges and lawyers were acknowledged as politicians. Interpretation of legal texts was seen as a political activity. His work was so well received that a hard cover edition was published in 1839.

The edition presented in this issue was prepared by William Gardiner Hammond in 1880. Jacksonian politics were then in retreat before a rising tide of technocratic professionalism. Many lawyers and judges were disowning the political mission of American law and aspiring to be technocrats. To …

"Fetch Some Soupmeat", William N. Eskridge Jr.

Cardozo Law Review

Although first published over 150 years ago, Francis Lieber's Legal and Political Hermeneutics remains broadly influential, and the soupmeat hypothetical in particular has been reproduced in the most widely read twentieth-century legal texts for teaching statutory interpretation. The directive, "fetch some soupmeat," seems straightforward in most situations, because the housekeeper and the servant are operating under the same assumptions, and because their shared assumptions are borne out as the servant goes about his task. Lieber's project-and the project of any sophisticated theoretical treatment of statutory interpretation-was to explore the many ways in which "fetch some soupmeat" proves susceptible to surprising …

Reinventing The Russian State: Problems Of Constitutional Implementation, 28 J. Marshall L. Rev. 775 (1995), Robert Sharlet

UIC Law Review

No abstract provided.

The Minutemen, The National Guard And The Private Militia Movement: Will The Real Militia Please Stand Up, 28 J. Marshall L. Rev. 959 (1995), Chuck Dougherty

UIC Law Review

No abstract provided.

The Last Centrifugal Force, Robert F. Nagel

Publications

No abstract provided.

Reflections On From Slaves To Citizens Bondage, Freedom And The Constitution: The New Slavery Scholarship And Its Impact On Law And Legal Historiography, Robert J. Kaczorowski

Faculty Scholarship

The thesis of Professor Donald Nieman's paper, "From Slaves to Citizens: African-Americans, Rights Consciousness, and Reconstruction," is that the nation experienced a revolution in the United States Constitution and in the consciousness of African Americans. According to Professor Nieman, the Reconstruction Amendments represented "a dramatic departure from antebellum constitutional principles,"' because the Thirteenth Amendment reversed the pre-Civil War constitutional guarantee of slavery and "abolish[ed] slavery by federal authority." The Fourteenth Amendment rejected the Supreme Court's "racially-based definition of citizenship [in Dred Scott v. Sandford4], clearly establishing a color-blind citizenship” and the Fifteenth Amendment "wrote the principle of equality into the …

That The Laws Shall Bind Equally On All: Congressional And Executive Roles In Applying Laws To Congress, Harold H. Bruff

Publications

No abstract provided.

Structuring The Ballot Initiative: Procedures That Do And Don't Work, Richard B. Collins, Dale Oesterle

Publications

No abstract provided.

Overview Of The Role Of Precedent In The Legal System Of The United States, Ana Elena Fierro

LLM Theses and Essays

Traditionally, legal systems have been classified as either Common Law or Civil Law; scholars distinguish these systems based on their origins, as well their attitudes towards stare decisis. Common law considers precedent as a source of binding rules, while civil law does not. However, some scholars consider the methods for legal reasoning to be almost the same in every legal system. These scholars maintain that regardless of the source of law in a particular country, once a judge determines that the facts of one case are similar to those regulated by a certain rule, the judge will apply that particular …

The Six Companies And The Geary Act: A Case Study In Nineteenth-Century Civil Disobedience And Civil Rights Litigation, Ellen D. Katz

Articles

In 1892, the Chinese Consolidated Benevolent Association in San Francisco urged the resident Chinese community to ignore a federal law. The United States Congress had just passed the Geary Act, which required all Chinese laborers living in the United States to register with the collector of internal revenue. Under the act, those who did not register would face arrest and likely deportation. The Benevolent Association, also known as the Six Companies," claimed that the act violated both the constitutional right to due process and treaty obligations with China. To combat the legislation, the association enlisted the assistance of the Chinese …

The Nomination Of Justice Brennan: Eisenhower's Mistake: A Look At The Historical Record, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

National Socialism And Constitutional Law: Carl Schmitt, Otto Koellreutter, And The Debate Over The Nature Of The Nazi State, 1993-1937, Peter Caldwell

Cardozo Law Review

On January 30, 1933, President von Hindenburg named Adolf Hitler chancellor of the German Republic. One year later, the conservative (and by then National Socialist) constitutional lawyer, Carl Schmitt noted that Hitler's chancellorship was an event that had "already led beyond the Weimar Constitution." But where had the seizure of power led? What was the nature of the new constitution of the German Empire? As historian David Schoenbaum has noted, 1933 was a kind of "constitutional no man's land"; it was unclear how the principles enumerated in the Nazi Party Program of 1920 would translate into the reality of the …

On War And Justice, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Rehabilitating Federalism, Erwin Chemerinsky

Michigan Law Review

A Review of To Make a Nation: The Rediscovery of American Federalism by Samuel H. Beer

Executive Detention In Time Of War, Richard A. Posner

Michigan Law Review

A Review of In the Highest Degree Odious: Detention Without Trial in Wartime Britain by A.W. Brian Simpson

Taking The Fifth: Reconsidering The Origins Of The Constitutional Privilege Against Self-Incrimination, Eben Moglen

Michigan Law Review

The purpose of this essay is to cast doubt on two basic elements of the received historical wisdom concerning the privilege as it applies to British North America and the early United States. First, early American criminal procedure reflected less tenderness toward the silence of the criminal accused than the received wisdom has claimed. The system could more reasonably be said to have depended on self-incrimination than to have eschewed it, and this dependence increased rather than decreased during the provincial period for reasons intimately connected with the economic and social context of the criminal trial in colonial America.

Second, …

Graveyard Robbery In The Omnibus Budget Reconciliation Act Of 1993: A Modern Look At The Constitutionality Of Retroactive Taxes, 27 J. Marshall L. Rev. 775 (1994), Andrew G. Schultz

UIC Law Review

No abstract provided.

Writing Supreme Court Biography: A Single Lens View Of A Nine-Sided Image, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Initiative Enigmas, Richard Collins

Publications

No abstract provided.