Legal History Commons^™

Overruling Mcculloch?, Mark A. Graber

Arkansas Law Review

Daniel Webster warned Whig associates in 1841 that the Supreme Court would likely declare unconstitutional the national bank bill that Henry Clay was pushing through the Congress. This claim was probably based on inside information. Webster was a close association of Justice Joseph Story. The justices at this time frequently leaked word to their political allies of judicial sentiments on the issues of the day. Even if Webster lacked first-hand knowledge of how the Taney Court would probably rule in a case raising the constitutionality of the national bank, the personnel on that tribunal provided strong grounds for Whig pessimism. …

M'Culloch In Context, Mark R. Killenbeck

Arkansas Law Review

M’Culloch v. Maryland is rightly regarded as a landmark opinion, one that affirmed the ability of Congress to exercise implied powers, articulated a rule of deference to Congressional judgments about whether given legislative actions were in fact “necessary,” and limited the ability of the states to impair or restrict the operations of the federal government. Most scholarly discussions of the case and its legacy emphasize these aspects of the decision. Less common are attempts to place M’Culloch within the ebb and flow of the Marshall Court and the political and social realities of the time. So, for example, very few …

The Confusing Language Of Mcculloch V. Maryland: Did Marshall Really Know What He Was Doing (Or Meant)?, Sanford Levinson

Arkansas Law Review

All legal “interpretation” involves confrontation with inherently indeterminate language. I have distinguished in my own work between what I call the Constitution of Settlement and the Constitution of Conversation. The former includes those aspects of the Constitution that do indeed seem devoid of interpretive challenge, such as the unfortunate assignment of two senators to each state or the specification of the terms of office of representatives, senators, and presidents. I am quite happy to concede that “two,” “four,” and “six” have determinate meaning, though my concession is not based on a fancy theory of linguistics. It is, rather, a recognition …

Mcculloch At 200, David S. Schwartz

Arkansas Law Review

March 6, 2019 marked the 200th anniversary of the Supreme Court’s issuance of its decision in McCulloch v. Maryland, upholding the constitutionality of the Second Bank of the United States, the successor to Alexander Hamilton’s national bank. McCulloch v. Maryland involved a constitutional challenge by the Second Bank of the United States to a Maryland tax on the banknotes issued by the Bank’s Baltimore branch. The tax was probably designed to raise the Second Bank’s cost of issuing loans and thereby disadvantage it relative to Maryland’s own state-chartered banks. Marshall’s opinion famously rejected the Jeffersonian strict-constructionist argument that implied powers …

Complicated Lives: Free Blacks In Virginia, 1619-1865, Sherri L. Burr

Faculty Book Display Case

Would the United States have developed differently if Virginia had not passed a law in 1670 proclaiming all subsequently arriving Africans as servants for life, or slaves? What if the state had not stripped all Free Blacks and Indians of voting rights in 1723, or outlawed interracial sex for 337 years?

Complicated Lives upends the pervasive belief that all Africans landing on the shores of Virginia beginning in late August 1619, became slaves. In reality, many of these kidnap victims received the status of indentured servants. Indeed, hundreds of thousands of free African Americans in the South and North owned …

Belle La Follette’S Fight For Women’S Suffrage: Losing The Battle For Wisconsin, Winning The War For The Nation, Nancy C. Unger

History

A century ago, on May 21, 1919, the US House of Representatives voted difinitively (304 to 89) in support of women’s suffrage. Two weeks later, Wisconsinite Belle La Follette sat in the visitors’ gallery of the US Senate chamber. She “shed a few tears” when it was announced that, by a vote of 56 to 25, the US Senate also approved the Nineteenth Amendment, sending it on to the states for ratification.¹ For Belle La Follette, this thrilling victory was the culmination of a decades-long fight. Six days later, her happiness turned to elation when Wisconsin became the first …

Forging Taiwan’S Legal Identity, Margaret K. Lewis

Brooklyn Journal of International Law

The legal system in Taiwan is undergoing a transformation. Over a hundred years since the founding of the Republic of China and over thirty years since the end of martial law on Taiwan, a new legal identity is being forged. Public criticism of “dinosaur” judges and esoteric debates among law-trained elites have galvanized efforts to create a more inclusive discussion surrounding legal reforms. Taiwan is facing the challenge of moving from dinosaurs to dynamism. This Article argues that transparency, clarity, and participation both are animating principles of the current reform debate and are beginning to emerge as characteristics of Taiwan’s …

Roots Of Revolution: The African National Congress And Gay Liberation In South Africa, Joseph S. Jackson

Brooklyn Journal of International Law

South Africa’s post-apartheid constitutions were the first in the world to contain an explicit prohibition of discrimination on grounds of sexual orientation, and that prohibition established the foundation for marriage equality and broad judicial and legislative protection of gay rights in South Africa. The source of this gay rights clause in the South African Constitution can be found in the African National Congress’s decision to include such a clause in the ANC’s A Bill of Rights for a New South Africa, published when the apartheid government of South Africa was still in power. This article traces the story of that …

Grinding Down The Edges Of The Free Expression Right In Hong Kong, Stuart Hargreaves

Brooklyn Journal of International Law

In the liberal-democratic tradition limits on speech must be clear, precise, and subject to justification within the particular constitutional framework of a given jurisdiction. In the Hong Kong Special Administrative Region (HKSAR), the Court of Final Appeal has developed a line of jurisprudence that explains under which circumstances the Government of Hong Kong (Government) may seek to limit the free speech provisions contained within the Basic Law, Hong Kong's quasi-constitution. In its fight against ‘localists,’ however, rather than legislating a clear speech restriction that is consistent with this jurisprudence, the Government has instead attempted to suppress unwelcome political speech in …

The United Nations Compensation Commission: Mass Reparations Apotheosis, Gregory Townsend

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Commonwealth And Commodity: Shakespeare's "King John", Robert J. Delahunty

Journal of Catholic Legal Studies

(Excerpt)

Part I begins, as does KJ itself, with the French ambassador questioning the King’s legitimacy, and continues with a dispute between two brothers over their inheritance. The problem of just title reverberates throughout the play. Part II explores the development and moral growth of Philip Falconbridge/Sir Richard Plantagenet—“The Bastard”—the play’s central character and if there is one, its hero. Part III analyzes the two concepts whose polar opposition structures the play: “commonwealth” and “commodity.” The contrast between these two ideas is found elsewhere in Tudor literature, but Shakespeare gives it a new resonance and depth. The service of one …

Aquinas's Prohibition Of Killing Reconsidered, John Makdisi

Journal of Catholic Legal Studies

(Excerpt)

St. Thomas Aquinas speaks to the heart of what it means to be human in our relationship with God when he expounds the way of the moral life in his Summa Theologiae. A classic example of the depth of his understanding is evident in his treatment of acts that knowingly kill. His style of writing is succinct and sometimes his ideas are distributed among several texts, but one can mine the riches of his thought with patient reading and reflection. This Article focuses exclusively on the extreme case where a person is certain to die if nothing is …

Comments On Steven Smith, Pagans And Christians In The City, Michael P. Moreland

Journal of Catholic Legal Studies

(Excerpt)

One of the most interesting aspects of this generally very interesting book was the discussion of sexual morality in paganism and Christianity. I have thought for a while that much of the contemporary debate about religious freedom is not about religious freedom in a generic sense but instead about religious freedom in a very particular context—sex. But that is a descriptive point—much more challenging is trying to give an account of why sex should have come to be (or as Smith’s argument implies, has long been) the battlefield on which much of the fight over religious freedom takes place. …

A Tale Of Two Cities: Religious Freedom In A Secular Age, Anna Su

Journal of Catholic Legal Studies

(Excerpt)

Understanding the terms under which Christianity and paganism could coexist in antiquity thus gives us a semblance of an answer to the question posed early on in the book. In ancient Rome, Pliny asks why Christians were being subjected to legal sanctions, while in our present time, Douglas Laycock asks why people—referring to same-sex couples suing wedding photographers, florists, and bakers who object on religious grounds to their union—would insist on these services they neither need nor want? The paganism of ancient Rome welcomed a plurality of cults and religions but only up to a certain point. When Christians …

Many Cities, One Nation: A Response To Steven Smith's Pagans And Christians In The City, Bruce P. Frohnen

Journal of Catholic Legal Studies

(Excerpt)

In his treatment of contemporary legal issues and, more deeply, his analysis of the manner in which changing religious assumptions and goals shape the culture from which law naturally grows, Smith has provided both a strong critique of contemporary “secular” pieties and an explanation for the culture wars so often derided or minimized by those most determined to deconstruct traditional culture. Still, I would argue that Smith’s wide-ranging, radical rethinking of contemporary social disorder does not go far enough. As Smith’s discussion of contemporary judicial treatment of social structure makes clear, today’s legal elites are at heart totalitarian in …

Correspondence With The Chief Justice Of The Supreme Court Of The United States, Warren E. Burger, Lewis F. Powell, Jr.

Powell Correspondence

No abstract provided.

Dean Melanie Leslie's Remarks For The Launch Of Women's Votes, Women's Voices: The 19th Amendment At 100, Melanie B. Leslie

Speeches & Presentations

On June 4, 2019, Benjamin N. Cardozo School of Law launched Women's Votes, Women's Voices: The 19th Amendment at 100. Women's Votes, Women's Voices is a year of celebration and scholarly discussion marking one hundred years of the 19th Amendment, which prohibited states from denying citizens the right to vote on the basis of sex, though not all women would have the same ability to vote or to make their voices heard. Bookended by the anniversaries of the passage of the amendment in June 1919 and its ratification in August 1920, #19at100 will commemorate these historical milestones with interactive …

Rwu Law News: The E-Newsletter Of Roger Williams University School Of Law (June 2019), Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

'Race, Racism, And American Law': A Seminar From The Indigenous, Black, And Immigrant Legal Perspectives, Eduardo R.C. Capulong, Andrew King-Ries, Monte Mills

The Scholar: St. Mary's Law Review on Race and Social Justice

Flagrant racism has characterized the Trump era from the onset. Beginning with the 2016 presidential campaign, Trump has inflamed long-festering racial wounds and unleashed White supremacist reaction to the nation’s first Black President, in the process destabilizing our sense of the nation’s racial progress and upending core principles of legality, equality, and justice. As law professors, we sought to rise to these challenges and prepare the next generation of lawyers to succeed in a different and more polarized future. Our shared commitment resulted in a new course, “Race, Racism, and American Law,” in which we sought to explore the roots …

Texas Indian Holocaust And Survival: Mcallen Grace Brethren Church V. Salazar, Milo Colton

The Scholar: St. Mary's Law Review on Race and Social Justice

When the first Europeans entered the land that would one day be called Texas, they found a place that contained more Indian tribes than any other would-be American state at the time. At the turn of the twentieth century, the federal government documented that American Indians in Texas were nearly extinct, decreasing in number from 708 people in 1890 to 470 in 1900. A century later, the U.S. census recorded an explosion in the American Indian population living in Texas at 215,599 people. By 2010, that population jumped to 315,264 people.

Part One of this Article chronicles the forces contributing …