Legal History Commons^™

Constitutional Exaptation, Political Dysfunction, And The Recess Appointments Clause, Jay D. Wexler

Faculty Scholarship

The so-called Recess Appointments Clause of the Constitution provides that: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”1 As of only a few years ago, I considered this clause so minor and quirky that I included it in a book about ten of the Constitution’s “oddest” clauses, right alongside such clearly weird provisions as the Title of Nobility Clause and the Third Amendment.2 Though I recognized that the Recess Appointments Clause was probably the least odd …

A Pragmatic Republic, If You Can Keep It, William R. Sherman

Michigan Law Review

These things we know to be true: Our modern administrative state is a leviathan unimaginable by the Founders. It stands on thin constitutional ice, on cracks between the executive, legislative, and judicial branches. It burdens and entangles state and local governments in schemes that threaten federalism. And it presents an irresolvable dilemma regarding democratic accountability and political independence. We know these things to be true because these precepts animate some of the most significant cases and public law scholarship of our time. Underlying our examination of administrative agencies is an assumption that the problems they present would have been bizarre …

The Texas Supreme Court: A Narrative History, 1836–1986 (Book Review), Michael S. Ariens

Faculty Articles

The historical material and resources available for American legal historians is both too much and too little. Hundreds of published case opinions became thousands of opinions by the end of the 1820s, leading lawyers to conclude that no one could know the entirety of the law. Yet this cascade of information is also too little, because the work of treatise writers and magazine editors of the time was ruthlessly focused on then-existing legal concerns.

For these reasons, James L. Haley works within difficult strictures in his book, The Texas Supreme Court: A Narrative History, 1836–1986. Because his story is about …

The National Security State: The End Of Separation Of Powers, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Charles A. Beard & The Columbia School Of Political Economy: Revisiting The Intellectual Roots Of The Beardian Thesis, Ajay K. Mehrotra

Articles by Maurer Faculty

A century after it was first published, Charles A. Beard’s An Economic Interpretation of the Constitution remains a significant and controversial part of constitutional scholarship and history. Just as Beard sought to historicize the Founders as they drafted and adopted the Constitution, this article attempts to historicize Beard as he researched and wrote his classic text on the Constitution. Because Beard was both a graduate student and professor at Columbia University before and while he researched and wrote his book, this article explores the particular influence that Columbia University’s institutional and intellectual climate may have had on Beard and the …

The United States Constitutional History Through The Barristers And Political Theories Of The Middle Temple Inn Of Court, Allen E. Shoenberger

Faculty Publications & Other Works

No abstract provided.

Ambiguities Of Free Labor Revisited: The Convict-Labor Question In Progressive-Era New York, Barry Cushman

Book Chapters

From the Author

Until the last quarter of the twentieth century it was a commonplace that the various expressions of economic substantive due process we associate with the so-called “Lochner Era” were animated by laissez-faire economics and Social Darwinism. More recent assessments have persuasively rejected this view, observing that the Court as a whole and the justices individually voted to uphold many more instances of government regulation of the economy than they voted to invalidate, and that the closest thing to a Social Darwinist that the Court had to offer was Justice Holmes, on whose polemical dissent in Lochner the …

Pre-Constitutional Law And Constitutions: Spanish Colonial Law And The Constitution Of Cádiz, M C. Mirow

Faculty Publications

This article contributes to the intellectual and legal history of this constitutional document. It also provides a close study of how pre-constitutional laws are employed in writing constitutions. It examines the way Spanish colonial law, known as "derecho indiano" in Spanish, was used in the process of drafting the Constitution and particularly the way these constitutional activities and provisions related to the Americas. The article asserts that this pre-constitutional law was used in three distinct ways: as general knowledge related to the Americas and their institutions; as a source for providing a particular answer to a specific legal question; and …

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 …

Forgotten Supreme Court Abortion Cases: Drs. Hawker & Hurwitz In The Dock & Defrocked, Roy Lucas

Pepperdine Law Review

No abstract provided.

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 …

Constitutional Backdrops, Stephen E. Sachs

Faculty Scholarship

The Constitution is often said to leave important questions unanswered. These include, for example, the existence of a congressional contempt power or an executive removal power, the role of stare decisis, and the scope of state sovereign immunity. Bereft of clear text, many scholars have sought answers to such questions in Founding-era history. But why should the historical answers be valid today, if they were never codified in the Constitution's text?

This Article describes a category of legal rules that weren't adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These …

The Missing Jury: The Neglected Role Of Juries In Eighth Amendment Punishments Clause Determinations, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

A recent study of death penalty cases has revealed that judges, who are ordinarily thought of as the guardians of criminal defendants’ constitutional rights, are more likely to impose harsher punishments than jurors. This may be unsettling in its own right, but it is especially concerning because judges are the individuals charged with determining whether punishments are unconstitutionally cruel and unusual under the Eighth Amendment, and these determinations are supposed to be based on “the evolving standards of decency that mark the progress of a maturing society.” The study suggests that judges are out of step with society’s moral norms, …

Assessing The State Of The State Constitutionalism, Jim Rossi

Michigan Law Review

Robert Williams's The Law of American State Constitutions is an impressive career accomplishment for one of the leading academic lawyers writing on state constitutions. Given the need for a comprehensive, treatise-like treatment of state constitutions that transcends individual jurisdictions, Williams's book will almost certainly become the go-to treatise for the next generation of state constitutional law practitioners and scholars. The U.S. Constitution has a grip on how the American legal mind approaches issues in American constitutionalism, but an important recurring theme in Williams's work (as well as that of others) is how state constitutions present unique interpretive challenges. More than …

The Functions Of Ethical Originalism, Richard A. Primus

Articles

Supreme Court Justices frequently divide on questions of original meaning, and the divisions have a way of mapping what we might suspect are the Justices’ leanings about the merits of cases irrespective of originalist considerations. The same is true for law professors and other participants in constitutional discourse: people’s views of original constitutional meaning tend to align well with their (nonoriginalist) preferences for how present constitutional controversies should be resolved. To be sure, there are exceptions. Some people are better than others at suspending presentist considerations when examining historical materials, and some people are better than others at recognizing when …

Constitutional Theology: The Revival Of Whig History In American Public Law, William J. Novak

Articles

One of the things I admire about the profession of history is that there are no admissions requirements. Like being a novelist or a member of Congress, the door is open to almost anyone who wants to try their hand at the art or craft. In a world of an increasingly specialized division of professional labor, that is a relatively rare and special thing. Though I teach in a law school, for example, I would be in trouble if I tried to pass myself off as a lawyer. Though I could perhaps irritatingly refer to myself as a doctor owing …

Guns As Smut: Defending The Home-Bound Second Amendment, Darrell A. H. Miller

Faculty Scholarship

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms. But the Court left lower courts and legislatures adrift on the fundamental question of scope. While the Court stated in dicta that some regulation may survive constitutional scrutiny, it left the precise contours of the right, and even the method by which to determine those contours, for 'future evaluation."

This Article offers a provocative proposal for tackling the issue of Second Amendment scope, one tucked in many dresser drawers across the nation: Treat the Second Amendment …

The Great Depression And The New Deal, Barry Cushman

Book Chapters

From the Author

This essay was written for the Cambridge History of Law in America and appears in volume 3 beginning on page 268. Part I describes the economic conditions of the Great Depression and details the executive and legislative responses produced under the Hoover and Roosevelt Administrations. Part II examines contemporary controversies over the growth of federal executive authority and the elaboration of the administrative state. Part III documents the relaxation of constraints on economic regulation imposed by the Fifth and Fourteenth Amendments and the Contract Clause. Part IV analyzes various manifestations of the revolution in constitutional federalism. Part …

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash

ExpressO

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth has been Professor Randy Barnett who has argued in a number of articles and books that the Ninth was originally understood as guarding unenumerated natural rights. Recently uncovered historical evidence, however, suggests that those who framed and ratified the Ninth Amendment understood the Clause as a guardian of the retained right to local self-government. Recognizing the challenge this …

A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash

ExpressO

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment’s actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. The standard …

Universal Rights And Wrongs, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Executive Power Essentialism And Foreign Affairs, Curtis A. Bradley, Martin S. Flaherty

Michigan Law Review

Conflict abroad almost always enhances executive power at home. This expectation has held true at least since the constitutions of antiquity. It holds no less true for modern constitutions, including the Constitution of the United States. Constitutional arguments for executive power likewise escalate with increased perceptions of foreign threat. It is therefore hardly surprising that broad assertions of presidential power have become commonplace after the events of September 11, 2001, and the ensuing war on international terrorism. One perennial weapon in the executive arsenal is the so-called "Vesting Clause" of Article II of the Constitution. This clause, which provides that …

Anomalies, Warts And All: Four Score Of Liberty, Privacy And Equality, Francisco Valdes

Articles

Lawrence was decided exactly eighty years after the first liberty-privacy case, and in the midst of a fierce kulturkampf striving to roll back civil rights generally. In this Article, Professor Valdes situates Lawrence in the context formed both by these four score of liberty-privacy jurisprudence that precede it as well as by the politics of backlash that envelop it today. After canvassing the landmark rulings from Meyer in 1923 to Lawrence in 2003, in the process acknowledging both their emancipatory strengths and their traditionalist instrumentalism, Professor Valdes concludes that Lawrence is a long overdue recognition of the prior precedents and …

The Quicksands Of Originalism: Interpreting Minnesota’S Constitutional Past, Douglas A. Hedin

William Mitchell Law Review

There are several varieties of the “originalist” school of constitutional thought, but all subscribe in one degree or another to the belief that a constitutional clause should be interpreted according to its original meaning or the original intent of its authors. That original understanding or intent can be discerned from the text of the clause, the history of its drafting and ratification and, sometimes, early practices and court decisions interpreting that clause. It rightly has been called a “grand theory” because it is simple and clear, explains so much, and it has the almost irresistible attraction of being anchored firmly …

Rex E. Lee Conference On The Office Of The Solicitor General Of The United States: Panel For Former Solicitors General, Seth P. Waxman, Walter E. Dellinger Iii, Kenneth W. Starr, Charles Fried, Drew S. Days Iii

Georgetown Law Faculty Publications and Other Works

I agree entirely that the chain of command is clear and that the Framers managed to make it all the way through all the articles of the Constitution without even conceiving of a solicitor general, let alone bothering to mention an attorney general. It is important nonetheless to distinguish between those things the solicitor general does pursuant to the longstanding notice-and-comment regulation, and the other things a solicitor general may do pursuant to his (and, someday, her!) statutory obligation to be of general assistance to the attorney general.

Stare Decisis As A Constitutional Requirement, Thomas Healy

West Virginia Law Review

No abstract provided.

Attorney General Taney & The South Carolina Police Bill, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

The Strange History Of "All Men Are Created Equal", Pauline Maier

Washington and Lee Law Review

No abstract provided.

The American Founders' Responsibility, Ralph Lerner

Washington and Lee Law Review

No abstract provided.

Taking Decisions Seriously, Richard D. Friedman

Reviews

The New Deal era is one of the great turning points of American constitutional history. The receptivity of the Supreme Court to regulation by state and federal governments increased dra- matically during that period. The constitutionalism that prevailed before Charles Evans Hughes became Chief Justice in 1930 was similar in most respects to that of the beginning of the twen- tieth century. The constitutionalism that prevailed by the time Hughes’ successor Harlan Fiske Stone died in 1946 is far more related to that of the end of the century. How this transformation occurred is a crucial and enduring issue in …