Legal History Commons^™

Hazelwood School District V. Kuhlmeier: How Useful Is Public Forum Analysis In Evaluating Restrictions On Student Expression In The Public Schools, 22 J. Marshall L. Rev. 403 (1988), Mark N. Bonaguro

UIC Law Review

No abstract provided.

Toward A Revisionist History Of The Supreme Court, Mark Tushnet

Cleveland State Law Review

The bicentennial year provoked a reconsideration of not only the era of the framing but of constitutional history as a whole. At one point I thought that I might participate in that effort by writing a history of the Supreme Court, updating Robert McCloskey's classic book in light of recent scholarship. It turned out that that project was too daunting for me. There was too much material to assimilate before I could feel comfortable in trying to present or even develop a history of the Supreme Court. This essay is, therefore, only a sketch of a revisionist history of the …

Enforcement Provisions Of The Civil Rights Act Of 1866: A Legislative History In Light Of Runyon V. Mccrary, The Review Essay And Comments: Reconstructing Reconstruction, Robert J. Kaczorowski

Faculty Scholarship

The purpose of this Comment is to examine the history of the enactment and early enforcement of the Civil Rights Act of 1866 from the perspective of the remedies Congress sought to provide to meet the problems that necessitated the legislation. Its main foci are the statute's enforcement provisions and their early implementation, an aspect of the history of the statute that has not been fully considered in relation to section one, the provision that has received the most scholarly attention. The occasion of this study is the Supreme Court's reconsideration of Runyon v. McCrary' in Patterson v. McLean Credit …

Luther Martin, Maryland And The Constitution, William L. Reynolds

Faculty Scholarship

Reviews the life and contributions of Maryland lawyer and scholar Luther Martin (1748-1826).

The Politics Of The First Amendment, Steve Bachmann

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Civil Liberties Guarantees When Indian Tribes Act As Majority Societies: The Case Of The Winnebago Retrocession, Charles F. Wilkinson

Publications

No abstract provided.

Toward A General Theory Of The Establishment Clause, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

The Authoritarian Impulse In Constitutional Law, Robin West

Georgetown Law Faculty Publications and Other Works

Should there be greater participation by legislators and citizens in constitutional debate, theory, and decision-making? An increasing number of legal theorists from otherwise divergent perspectives have recently argued against what Paul Brest calls the "principle of judicial exclusivity" in our constitutional processes. These theorists contend that because issues of public morality in our culture either are, or tend to become, constitutional issues, all political actors, and most notably legislators and citizens, should consider the constitutional implications of the moral issues of the day. Because constitutional questions are essentially moral questions about how active and responsible citizens should constitute themselves, we …

Origins Of The American Constitution, Harry Tepker

Other Faculty Publications

No abstract provided.

Means, Ends And Original Intent: A Response To Charles Cooper, Michael Wells

Scholarly Works

Charles Cooper believes that the ninth amendment should be read at once more broadly and more narrowly than it is today. In his view, the intent of the Framers was to cabin the power of the federal government. By taking note in the ninth amendment of rights other than those enumerated in the first eight, they sought to ensure that the national government would not exercise powers beyond those listed in the Constitution. Since the aim of the ninth amendment was to keep the federal government one of limited power, it is inappropriate to apply the amendment to the states, …

The Rise Of Modern Judicial Review: From Constitutional Interpretation To Judge-Made Law, Ward A. Greenberg

Michigan Law Review

A Review of The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law by Christopher Wolfe

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

Toleration And The Constitution, Judith L. Hudson

Michigan Law Review

A Review of Toleration and the Constitution by David A.J. Richards

Constitutional Politics: Affirmative Action And Supreme Process, Albert Broderick

North Carolina Central Law Review

No abstract provided.

Judicial Conscience And Natural Rights: A Reply To Professor Jaffa, Bruce Ledewitz

Seattle University Law Review

This Article replies to Professor Harry V. Jaffa’s article “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?” The Article focuses on the gap the author argues Professor Jaffa left between the consciousness of the Framers and the practice of judicial review today. The author argues that the understanding that Professor Jaffa brings to the intent of the Framers is one that opens up the Constitution to the call of justice, but the author critiques the utility of Professor Jaffa’s work in resolving the contentious constitutional issues of today, including abortion and capital punishment.

The Illegality Of The Constitution, Richard Kay

Faculty Articles and Papers

No abstract provided.

Foreword: On Jaffa, Lincoln, Marshall, And Original Intent, Lewis E. Lehrman

Seattle University Law Review

This Foreword introduces the article to follow written by Harry V. Jaffa, scholar of Abraham Lincoln’s political philosophy. The Foreward provides background material necessary to contextualize the ongoing debate surrounding constitutional interpretation emphasizing original intent addressed in Jaffa's article.

Professor Harry V. Jaffa Divides The House: A Respectful Protest And A Defense Brief, Robert L. Stone

Seattle University Law Review

This Article replies to Professor’ Jaffa’s article, “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?,” and book, The Crisis of the House Divided. The Article argues that Professor Jaffa’s method throughout his indictment of legal scholars has three flaws. First, the Article argues that Professor Jaffa takes statements of sensible political compromises-such as support for judicial restraint, British traditions, and local self-government-and treats them as if they were philosophical statements. Second, the author contends that Professor Jaffa assembles a composite indictment, which in law is appropriately applied only to an indictment against …

Will The Constitution Survive Into The Twenty-First Century - Some Reflections On The Bicentennial Of The United States Constitution, 21 J. Marshall L. Rev. 79 (1987), Michael P. Seng

UIC Law Review

No abstract provided.

Seven Questions For Professor Jaffa, George Anastaplo

Seattle University Law Review

This Article poses questions inspired by the four essays collected in Professor Harry V. Jaffa’s article “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?” The Article offers, in addition to fresh reflections upon these questions, three appendices, which bear upon various matters touched upon by Professor Jaffa. These appendices include, “The Founders of Our Founders: Jerusalem, Athens, and the American Constitution,” “The Ambiguity of Justice in Plato’s Republic,” and “Private Rights and Public Law: The Founders’ Perspective.” The Epilogue provides informed observations of a scholar who comments on the differences between Professor …

Standing In The Need Of Prayer? The Supreme Court On James Madison And Religious Liberty, Jonathan Van Patten

Faculty Publications

No abstract provided.

On The Constitutional Status Of The Administrative Agencies, Harold H. Bruff

Publications

No abstract provided.

American Indians And The Bicentennial, Richard B. Collins

Publications

No abstract provided.

What Were The "Original Intentions" Of The Framers Of The Constitution Of The United States?, Harry V. Jaffa

Seattle University Law Review

This Article explains how the doctrine of original intent might be defended as the basis for interpreting the Constitution. The deepest political differences in American history have always been differences concerning the meaning of the Constitution, whether as originally intended, or as amended. Since the Civil War, the debate has often taken the form of a dispute over whether or not the Civil War amendments, notably the fourteenth, have changed the way in which the whole Constitution, and not only the amended parts, is read or interpreted. It is not possible to even discuss how or whether the Civil War …

Notes On A Bicentennial Constitution: Part Ii, Antinomial Choices And The Role Of The Supreme Court, William W. Van Alstyne

Faculty Publications

Continuing the examination of judicial review conducted around the Constitution’s bicentennial, this article lays bare the inconsistencies in the expected tasks of the Supreme Court. Where some roles of the Court have traditionally been treated as indivisible, examining those same roles separate from one another produces an incoherent view of the Court that is difficult to compromise.

Law And The Experience Of Politics In Late Eighteenth-Century North Carolina: North Carolina Considers The Constitution, Walter F. Pratt

Journal Articles

In 1788, delegates assembled in North Carolina to decide whether to ratify the Constitution. A debate erupted between Federalists and Anti-federalists regarding each Article of the then-drafted Constitution. This Article analyzes the debate, and proposes that the key difference was the function of the role of the law.

Constructing A Constitution: 'Orginal Intention' In The Slave Cases, James Boyd White

Other Publications

The question how our Constitution is to be interpreted is a living one for us today, both in the scholarly and in the political domains. Professors argue about "interpretivism" and "originalism" in law journals, they study hermeneutics and deconstruction to determine whether or not interpretation is possible at all, and if so on what premises, and they struggle to create theories that will tell us both what we do in fact and what we ought to do. Politicians and public figures (including Attorney General Edwin Meese) talk in the newspapers and elsewhere about the authority of the "original intention of …

Adjudication Is Not Interpretation: Some Reservations About The Law-As-Literature Movement, Robin West

Georgetown Law Faculty Publications and Other Works

Among other achievements, the modern law-as-literature movement has prompted increasing numbers of legal scholars to embrace the claim that adjudication is interpretation, and more specifically, that constitutional adjudication is interpretation of the Constitution. That adjudication is interpretation -- that an adjudicative act is an interpretive act -- more than any other central commitment, unifies the otherwise diverse strands of the legal and constitutional theory of the late twentieth century.

In this article, I will argue in this article against both modern forms of interpretivism. The analogue of law to literature, on which much of modern interpretivism is based, although fruitful, …

The Rise And Fall Of The "Doctrine" Of Separation Of Powers, Philip B. Kurland

Michigan Law Review

As the Constitution of the United States nears its two hundredth anniversary, there is a frenzy of celebration. However awesome the accomplishment, I submit that it is no slander to recognize that the 1787 document was born of prudent compromise rather than principle, that it derived more from experience than from doctrine, and that it was received with an ambivalence in no small part attributable to its ambiguities. Indeed, its most stalwart supporters doubted its capacity for a long life. It should not be surprising, then, that even today there is disagreement over whether the Constitution of 1787 is now …

Public Rights And The Federal Judicial Power: From Murray's Lessee Through Crowell To Schor, Gordon G. Young

Buffalo Law Review

No abstract provided.