American Legal and Constitutional History

A Brief History of Bankruptcy

by J. Holder Bennett

Economic Libertarians, Property, and Institutions: Linking Activism, Ideas and Identities among Property Rights Advocates

by Laura Hatcher

Published in The Worlds Cause Lawyers Make, edited by Austin Sarat and Stuart Scheingold

Twentieth century economic libertarians developed their ideas and identities through legal advocacy.  This... more Twentieth century economic libertarians developed their ideas and identities through legal advocacy.  This included making use of past arguments concerning the nature of individual property rights that, ironically, involved corporate interests in the late nineteenth century.  These corporate interests, eventually, became part of the regulatory framework that property rights activists in the 20th century took aim at.  Through the development of a "conservative public interest movement", these activists developed legal arguments within the institutions of the legal profession in part by creating new organizations in that profession, including the Federalist Society.  This paper describes this progression, linking ideas and institutions to activism among conservative public interest lawyers who self-identify as economic libertarians. 

Using American Jurisprudence to Resolve the British Separation of Powers Following the Human Rights Act 1998

by William Worster

This essay will argue that the constitution of the United Kingdom is converging with that of the United States and... more This essay will argue that the constitution of the United Kingdom is converging with that of the United States and other countries in terms of judicial review and the separation of powers. This is due partly to waning deference to Parliament by the courts, but most significantly by the enactment of the Human Rights Act 1998 (HRA). When the new separation of powers in the U.K. is compared to that of the U.S., especially by applying judicial review reasoning, the change in the British Constitution by the HRA can more clearly be seen. Beginning in antiquity first, this essay will address the foundations of the political system in England, and discuss the early development of the idea of judicial review of parliamentary legislation. Several elements emerge from this historical inquiry: the nature of the unitary political system and the very political basis of the constitution. Then this essay will move to the U.S. where judicial review flowered, to examine Marbury v. Madison and develop the premises within that decision that allowed Chief Justice Marshall to conclude that the court had the power to strike legislation. The Marbury thesis is then coupled with the stare decisis of the common law to produce the judicial review as known in the U.S. Following this interpretation of Marbury and U.S. judicial review principles, this essay will describe the powers of judicial review in the U.K. before the HRA, and after. There will be a specific application of the judicial review reasoning developed in the U.S. to the situation in the U.K. under the HRA. Considering the political nature of the British constitution, this essay will argue that entrenchment of constitutional principles in the British constitution is possible. We will see that the HRA has formed a real possibility of the de facto judicial power to strike legislation. Therefore, in both in the U.S. and in the U.K., the need to have a "modern democratic nation" which balances democratic rule and constitutional principles has resulted in structural arrangements both political and legal, which give much of the ultimate constitutional authority to the judiciary.

"We, the Volk: Modern and Radical Constitutionalism from the American Revolution to the German Direct-Democracy Debate."

by Thomas Clark

Europe’s American Revolution. Ed. Simon Newman. London: Palgrave, 2006: 123-146.

Impeachment and Institutional Integrity in the Philippines | The JURIST Univ. of Pittsburgh Law

by Edsel Tupaz

JURIST Columnist Edsel Tupaz of Tupaz & Associates argues that the coming impeachment trial of Philippine Chief... more JURIST Columnist Edsel Tupaz of Tupaz & Associates argues that the coming impeachment trial of Philippine Chief Justice Renato Corona must be undertaken in a manner that preserves the integrity of both the Congress and the Supreme Court, while impartially addressing the serious allegations of abuse of power leveled against Corona.

Of Circuses And Sanity In The Philippines | Huffington Post

by Edsel Tupaz

Co-authored with Daniel Wagner.

What is happening in the Philippines this week reminds us that sometimes, the government can actually get things... more What is happening in the Philippines this week reminds us that sometimes, the government can actually get things right. The Philippine House of Representatives voted to impeach Chief Justice Corona for allegedly violating the constitution and betraying the public trust in connection with the trial of former president Arroyo, who originally appointed Corona to the Supreme Court. Corona is the first Chief Justice and Justice of the Supreme Court to actually be impeached by the House.

The Precipice of Disunion: The Nullification Crisis of 1832-3

by Chip Schroeder

The Nullification Crisis was a controversy ostensibly caused by the federal government’s tariffs of 1828 and 1832 that... more The Nullification Crisis was a controversy ostensibly caused by the federal government’s tariffs of 1828 and 1832 that strained the Southern economy more than it was already being hurt by the recession that began in 1819. The passage of these tariffs in Congress—one under President John Quincy Adams; the other under President Andrew Jackson—proved to some South Carolinians that their interests were being surrendered to the will of the majority. South Carolinians therefore looked back into the nation’s history to find a way to restore their liberties under the flag of Thomas Jefferson’s Kentucky Resolutions and James Madison’s Virginia Resolutions. The resulting conflict divided South Carolina between nullifiers and unionists, brought the nation to the precipice of disunion, and laid the roots for a country divided on sectional lines.

Legal Specialists and Judicial Administration in Late Imperial China, 1651-1911

by Li Chen

Late Imperial China, Vol. 33, No. 2, June 2012 (Forthcoming).

This article studies the historical origin, legal training, career patterns, professional identity and ethics,... more This article studies the historical origin, legal training, career patterns, professional identity and ethics, judicial philosophy, and scale of professionalization of thousands of legal specialists in late imperial China from about 1651 to 1911. It is the first serious, extensive study in English of these early modern Chinese jurists and legal professionals who were the de facto judges in probably most of the 1650 Chinese local governments/courts for more than two centuries. For the first time, it uses archival sources to offer an estimate of about 3,000 such trained legal specialists working in local Chinese governments in any given year from roughly 1711 to 1911, which means an estimated total of 30,000 for that period as a whole, assuming an average tenure of 20 years of full employment for them. This study calls for a rethinking of much of the received wisdom on late imperial Chinese legal tradition, judicial administration, and law and society, as well as their legacy on modern China's drive for the rule of law.


Keywords: Chinese law, Chinese legal culture, Chinese legal history, Chinese lawyers, Chinese justice, Chinese jurists
Accepted Paper Series, Comparative law, Comparative legal history, Asian legal culture, Confucian literati, intellectual history, professionalism, legal ethics.
Date posted: October 29, 2011
Suggested Citation:
Chen, Li, Legal Specialists and Judicial Administration in Late Imperial China, 1651-1911 (October 1, 2011). Late Imperial China, Vol. 33, No. 2, June 2012. Available at SSRN: http://ssrn.com/abstract=1949983

“Scotch-Irish or Merely Irish”: Brackenridge, Findley, and Contestation of Ethnic Identity in the Early Republic

by Peter Gilmore

Delivered to the annual meeting of the Society for Historians of the Early Republic, Philadelphia, July 2011.

The paper examines the conjuncture of cultural, economic and political circumstances which defined and divided Irish... more The paper examines the conjuncture of cultural, economic and political circumstances which defined and divided Irish Presbyterians and Scots in western Pennsylvania in the 1780s.  Ethnic distinctions tended to coincide with political differences in this region heavily settled by Presbyterians from the north of Ireland.  In the transmontane backcountry Irish Presbyterians tended toward political radicalism, the result of mutually reinforcing democratic politics, economic disadvantage and deeply held religious values.  Theirs was an outlook shaped, in part, by the experience of social and political estrangement in Ulster.  Scottish-born conservatives in western Pennsylvania regarded the radicalism of the backcountry Irish Presbyterians with deep anxiety, all the more so because of similar cultural origins and shared religious affiliations.
This ethno-political antagonism reached a literary apogee in the publications of the Scots-born, frontier litterateur and lawyer Hugh Henry Brackenridge, particularly in his disputation with his political nemesis, the Irish-born, western Pennsylvania democratic leader William Findley.  The two men defended their legislative records and assailed each other while both serving in the Pennsylvania legislature in 1787.  Brackenridge further denounced and defamed Findley as both men engaged in the debate over ratification of the United States Constitution; Findley doggedly defended a backcountry moral economy and local democracy.  The Brackenridge-Findley controversy is indicative of a demarcation in the early United States between immigrants from Scotland and Irish Presbyterians, a divide in which conflicting political views and opposing economic interests reinforced conflicted constructions of ethnic identity.

The first water-privatization debate: Colorado water corporations in the gilded age

by David Schorr

Appropriation as Agrarianism: Distributive Justice in the Creation of Property Rights

by David Schorr

Linking Purpose and Tactics: America and the Reconsideration of the Laws of War During the 1990s

by Stephanie Carvin

Nebraska and Kansas Territories in American Legal Culture: Territorial Statutory Context

by Brenden Rensink

In The Nebraska-Kansas Act of 1854, John Wunder and Joann Ross, eds, 47-66. Lincoln, Nebraska: University of Nebraska Press, 2008.

E Pluribus UNOS: the National Organ Transplant Act and Its Postoperative Complications

by Jed Adam Gross

FROM ROE V. WADE TO FETAL PAIN LEGISLATION: A REFLECTION OF AMERICAN JURISPRUDENCE ON THE INDIAN MILIEU OF LIBERALISED ABORTION POLICIES

by Debadyuti Banerjee

Co-authored with Ujwala Uppaluri, junior at WBNUJS
Published in NUJS Law Review, Vol.2, 2009.

Abortion laws originated in the United Kingdom as early as 1803, but the credit for revolutionizing abortion laws and... more Abortion laws originated in the United Kingdom as early as 1803, but the credit for revolutionizing abortion laws and recognizing the inherent, perhaps inextricable right and liberty of women over their bodies can only be given to the United States - more specifically to the American judiciary. From as early as Roe v. Wade, the American judiciary has been reiterating the inherent right of a woman as a constitutional person, to terminate her pregnancy in the earlier stages and thereafter giving the State a role to play, hence making abortion legal for the first time in the Unites States in 1973. Even though senators and other policy-makers in several, if not all, states of the United States have tried to whittle down the basic premise of Roe v. Wade, it has been emphatically upheld in subsequent cases. After more than thirty years of the pro-abortion movement in the West taking firm root, anti-abortion groups have again taken a radical stand by trying to control abortions through the introduction of the Unborn Child Pain Awareness Bill, 2005 (commonly known as Fetal Pain Legislation) and as many as twenty-three states in the USA have passed it to be an Act, which would require that abortionists disclose to women the reality that killing an unborn baby by abortion causes pain to the child. It would also require that women who were pregnant for more than twenty weeks be given the choice of adopting anesthesia for their fetuses. Interestingly this move by the legislature was said to find its basis in the judgment of Gonzales v. Carhart where the Supreme Court held that the federal legislation banning partial-birth abortion was constitutional on its face. The issue of fetal pain arose amidst the partial-birth abortion debate. Supporters of the federal legislation argued that partial-birth abortion was excruciatingly painful for the fetus and that banning this abortion procedure would further the state’s legitimate interest in protecting the unborn child. Opponents of the federal ban argued that there was no conclusive scientific evidence to support the hypothesis that a fetus is even capable of feeling pain. As a result of this partial-birth abortion controversy, legislations aimed at acknowledging and assuaging fetal pain during abortion came into being.
In India, the debate on abortion laws as embodied in the Medical Termination of Pregnancy Act, 1971 has been swirling since the Bombay High Court’s decision in Dr. Nikhil Dattar & Ors. v. Union of India, where the Court by a strict interpretation of the provisions in the statute, refused to give a lady pregnant with a malformed fetus the right to abort since she was already in her twenty-fourth week of pregnancy. Since then there have been urgent calls to amend the statute as long-standing criticisms of the policy have been brought to the forefront again. It has become critical at this juncture to look at the development of abortion law and policies in the West, particularly in the United States, to gauge where India stands at this moment and whether, if at all, India should be inspired by the western counterpoint or should take caution from the developments therein to further its own interests in striking the perfect balance between liberty, autonomy and freedom of the individual on the one hand and the State’s right to interfere, on the other.

The First Constitution: Rethinking the Origins of Rule of Law and Separation of Powers in Light of Deuteronomy

by Bernard M. Levinson

Cardozo Law Review 27:4 (2006): 1853–1888.

This article demonstrates the overlooked contribution of the ancient Near East to the development of constitutional... more This article demonstrates the overlooked contribution of the ancient Near East to the development of constitutional law. The legal corpus of Deuteronomy provides a utopian model for the organization of the state, one that enshrines separation of powers and their systematic subordination to a public legal text—the “Torah”—that delineates their jurisdiction while also ensuring their autonomy. This legislation establishes an independent judiciary while bringing even the monarch under the full authority of the law. Deuteronomy’s implicit model for a political constitution is unprecedented in legal history. Two of its cornerstones are fundamental to the modern idea of constitutional government: (1) the clear division of political powers into separate spheres of authority; and (2) the subordination of each branch to the authority of the law. This legislation was so utopian in its own time that it seems never to have been implemented; instead, idealism rapidly yielded to political pragmatism. Nonetheless, Deuteronomy’s draft constitution provides an important corrective to standard accounts of constitutional legal history.

Keywords:
Constitutional thought; rule of law; separation of powers; Deut 16:18-18:22; Laws of public officials; Law of the king; Deut 17:14-20; Ämtergesetze; Verfassungstheorie; Torah monarchy; Sophocles Antigone law; Herodotus Demaratus; Greek kingship; Mishnah King; mishnah Aboth 1:1; American constitution; Josephus πολιτεία [politeia]; origin of judicial system; Hammurabi; founding myth; independent judiciary.

The King James Bible at 400: Scripture, Statecraft, and the American Founding.

by Bernard M. Levinson

Co-authored with Joshua Berman, published as a special supplement in The History Channel Magazine, November 2010, pp. 1-11.

This short article addressed to a broader readership investigates the impact of the King James Bible upon the American... more This short article addressed to a broader readership investigates the impact of the King James Bible upon the American founding. In order to show that impact, the article's first half portrays the political context for the formation of the King James, charts the influence of the Bible upon early modern political thought, and then sketches the impact of the KJV upon the rhetoric and political thought of the Founders. The essay is accompanied by a timeline.

Key Words:
Authorized Version; King James Version; American Founding; Bible and political thought, religion and the founding, founders, Bible and intellectual history, Spinoza, Bible and constitution; Bible and democracy.

Constitutional tariffs, incidental protection, and the Laffer relationship in the early United States

by Phillip Magness

Constitutional Political Economy, Vol. 20, No. 2

This article explores an early attempt to establish a constitutional constraint on tariffs utilizing the Laffer Curve... more This article explores an early attempt to establish a constitutional constraint on tariffs utilizing the Laffer Curve relationship. In 1842 John Calhoun suggested that the curve’s revenue maximization apex could be used to differentiate between “Revenue” and “Protective” tariffs independently from the non-judiciable question of legislative motive. When admitted that a tax must actually be collected to remain constitutionally valid, the apex functions as a de facto upper tariff rate constraint. Despite subsequently falling in disfavor, Calhoun’s argument illustrates the importance of political economy on the constitutional level by recognizing conditions that induce policymakers to rationally raise tax rates.