Legal History Commons^™

Mcculloch's "Perpetually Arising" Questions, David S. Schwartz

Arkansas Law Review

I’m truly honored to have my book be the subject of a symposium on Balkinization, and I’m deeply grateful to Jack Balkin and John Mikhail for organizing and hosting it. Among its many gratifications for me personally, the symposium guaranteed that at least eight people would read the book. That these readers have engaged with it so closely and insightfully is icing on the cake. My first article on McCulloch four years ago, which became the basis for a couple of the early chapters in the book, insisted that McCulloch was properly interpreted as far less nationalistic than we were …

Scholarship In Review: A Response To David S. Schwartz's The Spirit Of The Constitution: John Marshall And The 200-Year Odyssey Of Mcculloch V. Maryland, Law Review Editors

Arkansas Law Review

We are elated to introduce, and the Arkansas Law Review is honored to publish, this series discussing and applauding David S. Schwartz’s new book: The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. Schwartz sets forth meticulous research, coupled with unparalleled insight, into the opinion penned by Chief Justice John Marshall and details the winding path Marshall’s words have traveled over the past 200 years. Schwartz argues that the shifting interpretations of McCulloch, often shaped to satisfy the needs of the time, echoes the true spirit of the Constitution.

Les Deux Constitutions De John Marshall : Une Relecture De L’Arrêt Marbury V. Madison, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Marshaling Mcculloch, Richard A. Primus

Reviews

David Schwartz’s terrific new book is subtitled John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. But the book is about much more than Marshall and McCulloch. It’s bout the long struggle over the scope of national power. Marshall and McCulloch are characters in the story, but the story isn’t centrally about them. Indeed, an important part of Schwartz’s narrative is that McCulloch has mattered relatively little in that struggle, except as a protean symbol.

Felony Disenfranchisement And The Nineteenth Amendment, Michael Gentithes

Akron Law Review

The Nineteenth Amendment and the history of the women’s suffrage movement can offer a compelling argument against felony disenfranchisement laws. These laws leave approximately six million citizens unable to vote, often for crimes wholly unrelated to the political process. They also increasingly threaten gains in female enfranchisement.

Today’s arguments in support of felony disenfranchisement laws bear striking similarities to the arguments of anti-suffragists more than a century earlier. Both suggest that a traditionally subordinated class of citizens is inherently incapable of bearing the responsibility that the right to vote entails, and that their votes are somehow less worthy than others. …

The Temperance Movement's Impact On Adoption Of Women's Suffrage, Richard H. Chused

Akron Law Review

This paper examines the nature of the Progressive Era and the Prohibition Movement and the important links between the sentiments giving rise to prohibition and those stimulating adoption of suffrage. Though each arose from a somewhat distinct array of reform impulses and overcame varying opposition groups, they were closely related in some ways, supported by overlapping groups of people, advanced by large numbers of women, and, in part, lifted to enactment by similar motivations. Indeed, without the support of many conservative citizens approving both Amendments, it is not clear what the fate of suffrage would have been after World War …

"A Woman Stumps Her State": Nellie G. Robinson And Women's Right To Hold Public Office In Ohio, Elizabeth D. Katz

Akron Law Review

In recognition of the centennial of the Nineteenth Amendment, this essay provides an introduction to a largely overlooked yet essential component of the women’s movement: the pursuit of women’s legal right to hold public office. From the mid-nineteenth century through ratification of the federal suffrage amendment in 1920, women demanded access to appointed and elected positions, ranging from notary public to mayor. Because the legal right to hold office had literal and symbolic connections to the right to vote, suffragists and antisuffragists were deeply invested in the outcome. Courts and legislatures varied in their responses, with those in the Midwest …

Suffragist Prisoners And The Importance Of Protecting Prisoner Protests, Nicole B. Godfrey

Akron Law Review

This paper examines the role that public exposure to the conditions experienced by suffragist prisoners played in the passage of the Nineteenth Amendment. Using the experience of the suffragists as an example of how prisoner protest impacted democratic debate, the paper argues that robust protection of prisoners’ First Amendment rights is fundamental to the nation’s democratic values and political discourse and debate.

The paper begins with an historical overview of the arrests, convictions, and incarceration of the Silent Sentinels, women who began picketing outside the White House in 1917. Over the course of several months, local officials in the District …

The Rise And Fall Of Transcendent Constitutionalism In The Civil War Era, Cynthia Nicoletti

Faculty Scholarship

In the aftermath of the Civil War, American intellectuals saw the war itself as a force of transcendent lawmaking. They viewed it as a historical catalyst that had forged the United States into a nation. In writing the Fourteenth Amendment, Congress sought to translate the war's nationalistic spirit into text. But in the eyes of many contemporary thinkers, the war's centripetal energy was a doubleedged sword. It could create a nation out of disparate parts, but it was also potentially uncontainable, divorced from the regular lawmaking process and beyond the control of human actors. As a result, many American jurists …

Mcculloch V. Madison: John Marshall's Effort To Bury Madisonian Federalism, Kurt T. Lash

Law Faculty Publications

"In his engaging and provocative new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz challenges McCulloch’s canonical status as a foundation stone in the building of American constitutional law. According to Schwartz, the fortunes of McCulloch ebbed and flowed depending on the politics of the day and the ideological commitments of Supreme Court justices. Judicial reliance on the case might disappear for a generation only to suddenly reappear in the next. If McCulloch v. Maryland enjoys pride of place in contemporary courses on constitutional law, Schwartz argues, then this …

Foreword, National Injunctions: What Does The Future Hold?, Suzette Malveaux

Publications

This Foreword is to the 27th Annual Ira C. Rothgerber Jr. Conference, National Injunctions: What Does the Future Hold?, which was hosted by The Byron R. White Center for the Study of American Constitutional Law at the University of Colorado Law School, on Apr. 5, 2019.

Three Keys To The Original Meaning Of The Privileges Or Immunities Clause, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Establishing the original meaning of the Fourteenth Amendment’s Privileges or Immunities Clause requires a wealth of evidence. But three key data points are crucial to identifying the core of its meaning. First, Supreme Court Justice Washington’s explanation of the meaning of “privileges and immunities” in Corfield v. Coryell; second, the rights protected by the Civil Rights Act of 1866; and third, Michigan Senator Jacob Howard’s speech explaining the content of the Privileges or Immunities Clause when introducing the Fourteenth Amendment to the United States Senate in 1866. Any theory of the Privileges or Immunities Clause and its original meaning …

The Failure Of The Criminal Procedure Revolution, William T. Pizzi

Publications

No abstract provided.

America's Amoral Constitution, Richard Albert

American University Law Review

The celebrated United States Constitution does not derive its legitimacy from morality. Its legitimacy is rooted in an amoral code structured around the peculiar value of outcome-neutrality. By design, the Constitution does not evaluate whether a lawful choice is morally right or wrong; it evaluates only whether the choice satisfies the procedures the Constitution requires for it to have been made. What matters, then, is not the content of the choice. It is the very act of choosing. These fiercely democratic foundations serve as both the font of the Constitution’s popular legitimacy and more ominously the greatest threat to the …

The Shaw Claim: The Rise And Fall Of Colorblind Jurisprudence, Molly P. Matter

Seattle Journal for Social Justice

No abstract provided.

Establishment Of Religion Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.

Due Process Supreme Court Rockland County

Touro Law Review

No abstract provided.

Due Process Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.

Due Process Supreme Court Appellate Division

Touro Law Review

No abstract provided.

Due Process Pringle V. Wolfe (Decided 28, 1996)

Touro Law Review

No abstract provided.

Due Process People V. Scott (Decided June 5, 1996)

Touro Law Review

No abstract provided.

Supreme Court Queens County

Touro Law Review

No abstract provided.

Double Jeopardy

Touro Law Review

No abstract provided.

Double Jeopardy Supreme Court Appellate Division Second Department

Touro Law Review

No abstract provided.

Double Jeopardy

Touro Law Review

No abstract provided.

Accommodating Competition: Harmonizing National Economic Commitments, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

This article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.

Considerations Of History And Purpose In Constitutional Borrowing, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …

A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John Bessler

All Faculty Scholarship

The sixteen words in the U.S. Constitution’s Eighth Amendment have their roots in England’s Glorious Revolution of 1688–89. This Article traces the historical events that initially gave rise to the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments. Those three proscriptions can be found in the English Declaration of Rights and in its statutory counterpart, the English Bill of Rights. In particular, the Article describes the legal cases and draconian punishments during the Stuart dynasty that led English and Scottish parliamentarians to insist on protections against cruelty and excessive governmental actions. In describing the grotesque punishments of …

Owning Heller, Darrell A. H. Miller

Faculty Scholarship

Recent historical research using big-data techniques casts doubt on whether District of Columbia v. Heller was rightly decided according to originalist methods. These new discoveries put originalists in a bind. Do they embrace “faint hearted” originalism: the idea that as between the need for stability in prior decision making, settled expectations, and the coherence of the law, some adulterated decisions must remain enforced for the greater good? Or do they follow Justice Thomas’s reasoning in Gamble v. United States, remain stout-hearted, and reject any prior decision that cannot be supported by the common linguistic usage of the founding era – …

Constitutional Conflict And Sensitive Places, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.