American Legal Histr

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Fifteenth Amendment (1870)

Gives blacks the right to vote. Only 5 NE states allowed black to vote when proposed; controversial; seven put in grandfather clauses You could vote if your family could vote before 1867, or you can read; right to vote; Obama 5th Senator • congressional republicans push for this amendment, required southern states to come to a convention, brining them back from the "grasp of war", believed this amendment would make it inevitable that the 14th Amendment would be ratified • very radical, at the time of the 15th A, only New England states allowed AA men to vote

Gary Lawson, Casey at the Court

Everyone thought Roe would get overturned; looked conservative; but it didn't shift o About Roe, which was 7-2 under Blackmun. o As conservatives took over court, and Reublican party shifted to make abortion part of its platform, it becomes increasing touchstone for national conservative movement. They keep trying to get a case to court and keep counting justices. They finally think they have enough justices to get rid of Roe. o The story here is, who goes the right way: Rehnquist, Thomas, Scalia all come home safely. Toward the end, O'Connor shifts it back to the other side; in balance. Then Kennedy goes the wrong way - "no joy for the Framers because Harvard trained the clerks." • Kennedy particularly becomes the frustrating person for conservatives. Souter was frustrating, but far surpassed by Kennedy. Kennedy remains frustrating. • They learn they have to get their people into law schools; make sure conservatives are also training the clerks.

American Equal Rights Association Meeting (1869)

Group dynamic; Fredrick Douglass; how to think about the issue when many groups have been excluded Douglass: black men should be priority; with lynching, matter of life + death; black women complicated Susan B Anthony: want the most intelligent group first, so educated women likely; uncomfortable today Lucy Stone: says education not important; want the 15th amendment to cover women as well Early women's movement plays to background prejudices; exclude, generally, black women

What do Elizabeth Keys and Fernando cases suggest about the legal status of Africans and people of color in early 17th century Virginia?

IN THE EARLY DAYS, SLAVE VS. NOT SLAVE WAS NOT SO CLEAR, THE LINES WERE BLURRED, AND COULD BE CHANGED. LAWS, AFTER 1660, BEGIN TO CHANGE TO FURTHER RESTRICT THE ABILITY TO CHANGE ONE'S STATUS.

Indentured Servitude:

Dominant form of bound labor; normally of whites; 50-75% of those that came over Some form of bound labor; outside of New England, maybe 85%; 50k were convicts; severance package Way to pay for passage, or if you don't have a family; give up marriage, autonomy, talking back Couldn't vote, travel freely, no bargaining power; usually for 7 or 14 years; or age based (21 or 30) Legal system will hear complaints; some protections; for slavery, it requires violence, no protections Still, has to be a serious violent problem for intervention; resolved by moving households (not free) Contract; would tear in half to make sure it was actual for X years; dominant in England Tried to enslave Indians, but totally unsuccessful; too easy to run away • Immigration was not in the Constitution, because they assumed it to be covered by the commerce clause. • People came to the US as part of an economy.

The Emancipation Proclamation

Drafted in 1862, effective in 1863; because of pressure from others; wait for a union win to announce it Post Antietam; frees slaves in occupied confederate districts; not a great read; areas are exempt Rights to labor for reasonable labor; no violence, but right to self-defense; military service=citizenship Military issue problematic for women; military enlistment was the route to freedom for many

Raleigh Patent (1621)

Equivalent of a charter; to discovery those not actively possessed by Christians More legalistic: dispose in fee simple or otherwise; tax portion (always present) Same privileges as if you were in England; English, even if in America; like military bases, embassies Delegates law-making power (what about Pluto); as near as conveniently as may be agreeable Americans pass laws, but need judicial review in England

Writings by opponents of the Constitution

Essays of 'Brutus' to the Citizens of the State of New York, II Published in Ny Journal contemporaneously with The Federalist Papers initial publication. George Mason, Objections to the Constitution of Government Objected to various compromises made by the Convention and refused to sign it. His critique was published in newspapers. Formed by the Convention Federal Farmer, Essay II Printed originally in a NY newspaper and then in a popular pamphlet.

What arguments were made against a bill of rights?

Federalist's Arguments Against Having One • States don't have a Bill of Rights, and the don't have problems • Enumeration Issue: Once you begin enumerating, you are always going to leave something out. If what's not on the list not there at all, or is it just lesser, dormant? • Didn't want to imply that the national government will overreach - because this is a limited Constitution and the government cannot act beyond those limits, they won't violate any individual rights. o What about the rights that are already in the Constitution, however? All the big rights were already in the Constitution. o What about the Necessary and Proper Clause? • Wilson: it is a terrible idea to put Bill of Rights in, because that will make people think the govt has more powers than explicitly said. Will encourage people to read the Constitution broadly.

Learned Hand, "Chief Justice Stone's Concept of the Judicial Function" (1946)

Frankfurter's side of deference is going to win for a long time; had many clerks that taught deference Learned Hand; haunted by Lochner (no labor laws); bad because court used personal judgment Consequently, court should never substitute personal judgment; Stone wants to use judgment

In 1863, who does the Emancipation Proclamation free? Why?

Frees about 3 million slaves, does not free around 1 million; justification through war powers; fragile

Frontiero v. Richardson (1973)

Gender discrimination; equal protection; Ginsberg brought the case; saw women as disadvantaged New test for deference; strict scrutiny and rational basis; if rational basis, you defer Gender discrimination gets intermediate scrutiny • She wanted benefits for her husband. They said she had to prove her H was dependent. • Litigated by Pauli Murray and Ruth Bader Ginsburg. • Court: you cannot use history of discrimination to justify current discrimination. Burden on this woman violates equal protection clause. • Originally decided under strict scrutiny; court will pull back to rational scrutiny for gender

Legal Education without Law Schools

Importance of Books For attorneys, it is critically important; a system to remember things that are written down The book is what law is at a fundamental level; maybe changing now with online Keep in mind, very little of what you use today (except maybe this outline electronically) will survive Law School Notes Students would write notes and re-copy them; professors would just get copied American legal education was reading books; Inns of court in England were just social All about learning on own or reading with somebody; liked summed treatises, dictionaries, manuals • No real guide; no coherence to the system; if alphabetical order, you learn it from A to W • Incoherent to Americans. • In the 1760s, Blackstone comes along.

What is Johnson's vision of the country and its history?

Important for the country to get behind civil rights; right to completely participate in democracy

How is the Court thinking about democracy and rights in Oyama?

Important for this period; Alien Land law; parents put farmland in child's name to have land in trust Very close to Brown v. Board decision; question of if it is constitutional; discrimination unfair, but law ok Majority talks about race completely, and just changes the test technically; allows the law to stand Dissent goes bonkers; Murphy: history of racism against the orient doesn't belong Democracy is about the dignity of the individual; Black and Douglas want it violated on equal protection Reed: in majority; says that discrimination is not, in itself, unconstitutional; tough to get for Brown

Consolidation

In 1890, most corporations had to incorporate in state and operate in State; no other corporate stocks To get around it, people did pooling agreements; allow you to come together; then, have trusts The trust acquires other companies, so under Ohio, can be infinitely large; brilliant idea Sherman Anti-Trust Act in 1890; everyone thought Standard Oil was bad; trust broken up

What problems is the "KKK Act" designed to address? How does it restructure federal and state boundaries of protection?

In response to black power, white violent groups came in; to enforce the right of all men to vote KKK just went around assassinating Republicans and 12k blacks; Grant elected; wants to protect soldiers Private right of action for deprivation of the 14th and 15th amendment rights Fears: intimidate by force, conspire, violence; huge scope to protect people Gives power to person offense is committed upon; jurisdiction in federal courts; flights fugitive slave law Allows Feds to send in the military; against those who disguise themselves: KKK specifically Treated violations as if it were an internal war; many indictments; habeas suspended in SC Lots of overreaching, but it was successful

In what areas did colonial Americans follow English law? Where did they alter it in accord with their ideas about different circumstances in the colonies?

In the beginning, the notion of coverture was not the same in the colonies, but it soon comes in line with the law of England. By the end of the colonial period, married women have the exact same experience on both sides of the Atlantic.

Writs of Assistance Case

James Otis; basically a warrant; Americans were good at smuggling; writ was a general search warrant Could search anywhere for any amount of time; British always had these warrants; Otis argued against John Adams wrote it down; home is a man's castle, should have privacy; unbounded power Arbitrary power that is destructive to liberty; says the constitution is the limit, not parliament; loses Beginning of notion of constitutional limits on Congress; could be given to another; died with king

What are the majority / dissent visions of the role in the Court in Korematsu

Japanese internment camps; gives deference, especially during war; Frankfurter: not our business Murphy dissent: on the side of rights; calls it racism; disagrees on deferring this time Perhaps deference on a type of weapon, but this does not warrant military deference Murphy: democratic life requires no racial discrimination; that is how you define a democracy

How does the Supreme Court understand the corporation and its relationship to the public?

Just because it had a public educational purpose; more than a piece of paper: legislative decision It may have a public purpose, but the assets are private; Story wants it to be an easy question Once you incorporate, government has given up control/no longer involved; reservations clause to help Creates an oasis of private space; after this, the corporation expands; Marshall not as expansive • Joseph Story - associated with SCOTUS and Harvard. • Harvard was not only chartered, but actually in the state constitution - School of Cambridge - even weaker case. • If Dartmouth becomes public university, so does Harvard, Princeton, Yale. • SCOTUS: looking at all circumstances and how it operates, it is private. • Just because you exist because of the state, does not make you public. • Public/private line is getting worked out in this period. This was actually a hard decision. • They focus a lot on the fact that private monies were put into it. • They think of this as Contracts Clause case.

• Anti-Miscegenation

Laws against interracial marriage. o Repeatedly, courts say that marriage is a matter of social equality and is not unconstitutional to regulate. o By 1916: 28 states have such laws. Many are not overturned until 1967.

What is Learned Hand's understanding of the court/ rights in 1946?

Learned Hand: rights are just a lesser part of the Constitution, not something for judicial enforcement As such, judges would just look at Federal courts and neutral, procedural legal process

Self-Emancipation via the Military

What is Matchett's experience? How does it compare to the 21st century law student?

Lots of reading, kind of sad about it; doesn't understand or remember anything; professors skip class Still goes to plays and hangs out with friends and drink too much; liked some professors Went by to see a girl, but finds out she is married; very similar in a sense to today

Examples of Early Massachusetts Incorporation Statutes (1781-1802)

MA was at the forefront; had to satisfy the public good requirement; transportation related Banks, medical societies, transportation, canals, turnpikes, railroads; had to get legislative approval Had some limits on your voting rights to prevent concentration of ownership; no political control Regulations and limits on the amount of profit you can make/what you charge for toll roads; not on Sun Limit on the amount of property held by the corporation; banks tightly regulated to not grow May limit the time of corporate existence; pull corporations back through ultra vires (outside bounds) Corporations weren't considered citizens for diversity purposes, so almost everything in State courts

Freedman's Bureau

Many problems for freed blacks; no capital, education, social skills, land, property, etc. Created by Congress to help; Lincoln thought to allow vote for some highly educated African Americans Most successful with education; rise of black colleges; but besides that, very unsuccessful Insufficient understand of what it needed form the Government

Cable Act (1922)

Married women lose their citizenship if they marry someone without citizenship; reversal date But if you marry someone not allowed to naturalize, you lose your citizenship; gone in 1930s

Brown et al. v. Board of Education of Topeka (1954)

NAACP set up a situation to flip Plessy; first argued for Chief Judge Vinson who died; replaced by Warren Unanimous decision; small step for the history of race; no such thing as separate but equal in education Times have changed; today, huge emphasis on school; education is now like a property right; need it Cannot pretend that without education you can have full citizenship, so no racial segregation Criticized by the legal academy; thinks it is like Lochner; starts notion of individual dignity (Murphy)

New Jersey Corporation Laws (1889)

NJ wanted to pay off debt; got corporations in with a modern holding company; can hold other stocks Standard Oil is now the mother ship, and can purchase stock with stock; no need for cash reserves Also allows operation out of State; now, huge mergers looked okay; NJ repeals, but DE replaces DE also has a special court, and the board of directors do not need to meet in DE; modern corporation US Steel has 200 companies w 2/3 of the market; tobacco had 90% of the market

The Beginnings of American Law Schools?

No law schools in the colonial period; some inns of court in England to party; apprentice and study William and Mary: 1779; just a single professor; lawyers should be lawyers and politicians Had moot court and a moot legislature; John Marshall went there for a year; commonplace George Tucker a student at W&M too; Tucker addition to Blackstone; how US law differs Tucker justifies slavery with a long comment, since he is in Virginia; case books weren't invented Cheaper; just have mom say you're good; Professors did other things; could just learn on your own (rich) Classes: law of nations, maritime, commercial transportation; no civ pro or professional responsibilty

Constitutional Originalism

Office of Legal Counsel; we can figure out original intent of the framers, and the intent should be applied Scalia is now a textualist: look to definitions for original meaning; Madison always cited; part of the time Puts in the legacy of deference; great politicking; political mode at the time

Legal profession in this period

Only at the very end of this period, at the 1920s, does the legal profession think about what they can do for the greater good During this period, the legal profession turned inward to think about what it meant to be a lawyer, a member of the bar, and in a law firm.

The Court and Democracy after 1937 Purpose of the court post-1937:

Only worry about regulating democratic processes; no worries about socio-economic legislation Only focus on when Democracy wasn't working well; protect property rights

What do Berle and Means mean by the "modern corporation"?

Ownership separated from control; management will be able to get bigger; will become huge/global

o 18th Amendment

Prohibition Weird clause: Has an expiration date on ratification - only one in the Constitution. Representative of the acceptance of giving over of power to national government regulation Also supported by women, largely. High point in imagining what the Constitution could do; expiration on ratification, only one

o 21st Amendment

Prohibition Repealed Lesson that the Constitution shouldn't solve all problems. May be better to do some things by legislation. Leading up to this amendment, there had been rampant disregard for the law by a vast majority of people. Also, the government had to spend a ton of money on prosecution and catching the people violating the Prohibition.

Why do they write the Mayflower Compact?

Recognition of the need for local governance of some sort • Bradford says they needed the compact because they are completely outside of the charter (Virginia company) for which they have authority and because some people who do not share the same religious understanding have been saying mutinous things. • They signed it on the boat. They were worried about dissent and mutiny. Not everyone on the boat was a Separatist. They don't technically have authority to land where they are going to land.

What was Patterson's NJ Plan (June 15)? What problems did it have?

Recognized Articles of Confederation did not work, and moved toward three-branch government, BUT VERY WORRIED THAT STATES GET EQUAL VOTES. • 3 Branches o Legislative Unicameral States represented in Congress equally. o Executive Still unclear how this is to be formed. o Judiciary Executive appoints judiciary. • The New Jersey Plan • Virginia will dominate both houses in the other plan; NJ does not like proportional representation. Small states hear: dominance by VA and large states. They want an alternative approach that will give some balance. • Unicameral. • Each state gets equal representation. Each state gets one vote. NJ plan basically says we will just reform the version of Congress we have - give it more coercive power, taxing power, fix complaints about Art of Confed, but will not change representation structure. • Madison is enraged: the states cannot represent anybody. He is apoplectic about the whole thing, but he is going to lose.

Judge Samuel Sewall

Publically apologized for his role in presiding over the witch trials Eventually writes a case against slavery that arose out of his realizations from the witch trials

Laws of Virginia (1661-1705)

Race as a defining line; hard for dark skinned people to assert their freedom effectively; no grey area • Negro womens children to serve according to the condition of the mother. Long-term consequence of slavery being inherited by the mother: becomes self-perpetuating. Everyone who is enslaved and pregnant passes on the condition. Allows white owners to have sex with / rape enslaved women, and the child is also enslaved and owned by the white owner. All of the laws are deliberate; way of describing the whole world that develops. Coercive sexual practices. Among southern slavery, children born from the owner was very common, everyone comfortable with it. • Annette Borden (?) book - about the Hemmings family, the only people Washington freed. • Baptism does not change status: so you can baptize everybody. • No Negroes nor Indians to buy christian servants: ensures nothing in the system will go upside down. In the earlier period, there were people of African origin who had slaves. This changed that. Early Laws of Virginia • We don't want to disincentivize baptisms and conversions, so we will say that slave status does not change based on baptism. • Also, a child will assume the status of his mother (slave/free).

1705 VA Law Servants and Slaves

Race as defining line • Dominant distinguishing factor between slave and servant by this time: RACE. • Once race becomes the dominant line, it becomes difficult for those people who are of dark skin to assert their freedom effectively. Call indentured servants apprentices Different category for black people

Railroads, Telegraph, Cars

Rise of railroads; ¼ million miles of track in 1916; injured 200k by 1910; 11k killed; dangerous/essential Moves goods and people very quickly all across the country; most tort cases by railroad 20k offices of Western Union; communication across the country huge In 1920, 1% of homes had central heating; 26% owned cars; country based on mobility • Industry and technology also booms at this time: o Transcontinental railroads lead to a significant rise in immigration as we need workers to build them. (By 1920 - 2.2 million employed by railroad companies) 1883: Railroads agree they should adopt a standard time. Hundreds of thousands of people are killed or injured by railroads. • Giving rise to a whole body of law determining who should bear the costs of those injuries. o Telegraph o Telephone o Automobile Catches on very quickly - 1920: 1% have central heating, 26% own a car.

Robert Taylor Swaine, The Cravath Firm and its Predecessors (1946-48)

Rise of the law firm as we know it; business model; men with the best grades; smartest A men first; big on transcript; top graduates; no readers of the law; good personality Start with small pieces, and get more and more later; delegation true today; still be good

Trust:

Rockefeller uses a trust. Under this scheme, each of the little companies delegated power to the trustees. The trust would then run all of these companies. Standard Oil was run as a trust. It was giant. • By 1880 - 95% of oil refining business in the US • 1910 - Worth 600 million dollars (about 1 trillion dollars in today's money) Congress investigates, but doesn't get much of anywhere.

Americans With Disabilities Act (1990)

Signed by the First Bush; people with disabilities were invisible before; ADA is very important o ADA is part of striking recognition about the need for the govt to protect rights of people with disabilities. o ADA extends rights / individual piece.

19th Amendment

So much of women's lives were governed by regulation; vote matters more; partial suffrage in west first Allow women to vote on education, school bonds, local issues; no way to draw the line; 19 in 1890 Three western States before 1900; then took 15 years for others; organization matters; 26 million in '20 Many parades, pickets, hunger strikes; Wilson needs women for WWI in 1917; publically agrees in 1918 May 1919; final vote in Tennessee by Harry Burns; don't forget to be a good boy; ratified in Aug. 1920

Tribal Structures

Some matrilineal; confederacies of tribes for specific areas Use rights very important; future myth from Supremes about no property rights

Changes in the Law about slavery

Start tracking the status of the mother; no out through baptism; others can't have white servants People born to slaves are enslaved; regulation of everything; took away autonomy; opposite from UK Abolished from England in 1833; laws allow people to have private violence and not see them as people • Legal differentiation • An Act Concerning Servants and Slaves • What is the problem with putting both in the same statute: • They were trying to distinguish people. • But still were thinking of both as bound labor. You can see the tension of those two things. • By 1740 in South Carolina, separate legislation. They put the indentured servitude legislation in its own statute, called Masters and Apprentices.

What are the different understandings of the relationship between the American system of slavery and American law in the Prigg case?

Story - Low-level anti-slavery thinker • Fugitive slave clause must be upheld under the Constitution because the Constitution wouldn't have been created in the first place if slavery was not maintained in the South. Thus, this must have been a property right over slaves. o This comes directly from Madison's notes published a year earlier. Taney • Agrees with Story's opinion except that he thinks the states have a duty to protect the property right. • This notion is the beginning of the argument that will lead to the Civil War. - PEOPLE HAVE A RIGHT TO PROPERTY IN THEIR SLAVES. McClain • States have the power to execute the law - this was a compromise so PA and other northern states should have some power. • Status of the escaped slave in a free state: Person, not property. o You are presuming that black people are slaves in the free states. • Important Question: Can the Northern states just remove themselves from the slavery issue? This is what Story desired.

Marital Rape

THERE IS NO CONCEPT IN THIS WORLD OF MARITAL RAPE. ONCE YOU HAVE MADE THE CHOICE TO MARRY, YOU CANNOT BE RAPED. ONLY IN THE 1980S DO WE BEGIN TO THINK DIFFERENTLY ABOUT THIS, BUT NOT TOO MUCH HAS CHANGED EVEN TODAY

The meaning of democracy: deference or rights?

TWO OPTIONS: Protect the process by which the legislative majority passes legislation or protecting the rights of people in spite of the majority passing legislation that violates those rights. protecting the minority from the majority? Defer to majoritarian legislation or protect rights that are crucial for justice

The "Well-regulated Society" - the role of the state

The current dominant understanding of what the early 19th century state was that the individual has given up liberty along the way in order to gain the protections of the state. It was very accepted that the power of the state was to restrict the individual and property for the common welfare. • It is relatively late in American history that the strong individual rights ideas arose under the Constitution and in our society.

CITIZENSHIP AND RACE **The Supreme Court plays a crucial role in this story.

The state action doctrine feels completely made up by the courts at this time - not the only way to interpret the 14th Amendment Conventional thought in history, but not in the legal realm where that doctrine thrives. o Plessy - Most people who study history think of this case as an effort to argue against a legalized caste in the United States. Blacks wanted no caste. In Con law, however, we learn Plessy as the separate but equal doctrine.

Organized American Legal Education begins

Two branches of legal education began - began to develop law courses within a university. o One branch: university legal education. o Other branch: proprietary approach. Lawyers and judges will decide to make money off of running a law school, by training students. • Litchfield Law School in CT was first example. You went and sat in a shed, and they lectured, and you wrote down everything you said. You created your own set of commentaries of American law, and that was what you were paying for. Everybody kept their notes; they were valuable - many examples of notebooks across country. More famous Americans went to the little white shed than any other law school. Then went out of business.

Economic Changes

US becomes a country completely dependent on slave labor; some move to Liberia; but most reject Slaves consider themselves American; had been there for generations; the way it has been for years Politicians tended to favor slavery; cotton gin made it seem like a critical investment; westward ideal Especially by 1830 when Liberia isn't a possibility; 1 million taken west of the original 13 Even though majority didn't own slaves, it was an identity people believed in politically

A society with enslaved people to a "slave society"

Under this new society, every detail of slavery is regulated by statute. • Laws about who is a slave and how that person is made a slave. • Laws govern daily life and status o Assembly - worried about rebellion o Religion o Literacy o Marriage o Sex o Cooking • The laws take away the slave's ability to not only be a "citizen" but also to be a "person" with any sort of autonomy. • Laws govern resistance and escape. o There are a few rebellions or rumors of rebellion that spur this type of legislation Bacon's Rebellion (1675) Stono Rebellion (1739) New York Rebellion (1741) BY THE TIME OF THE REVOLUTION, WE HAVE A TRUE SLAVE SOCIETY, A SOCIETY DEFINED BY SLAVERY o By time of revolution - slave society o Divided by race- race and status become aligned o Slave codes pull more people in - racialized presumption o Laws allow for private violence to control, rewards for capturing runaways

Preface from Ida M. Tarbell's History of the Standard Oil Company (1904)

Very successful expose of a corporation; had 90% of the refining business; bought politicians Under constant investigation; Rockefeller now seen as charitable; Carnegie not worker oppression Consolidation under boom/bust cycles post-Civil War; took advantage of downturns Horizontal (everyone like you) and vertical (Railroads, pipelines, gas supply) integration

Article III

Very vague; has much less than people expect; just one Supreme court; inferior courts as Congress has Nothing about the number of Justices on the Supreme Court either

Keeping Border States

WV didn't secede, but still have DE, Maryland, Kentucky, and Missouri on the battlefront Needs MD for DC; and Missouri and KT are critical; God would be nice, but he had to have KT Throughout the war, to keep KT, he wouldn't touch slavery; kept the Union together

Documents on US v. Susan B. Anthony (1873)

Went to vote; looked scary, so they let her; didn't put her in prison because of habeas; sham trial Jury trial without a jury; pardoned the people who let her vote so it doesn't go to Supremes • 14th Amendment Argument o Grant administration is committed not to grant to women the vote. o Susan B. Anthony case is sunk by the judge because the Grant administration wanted it that way o Thus, the judge did not allow the case to go to the jury, decided that there was no issue of fact, just law, and he decided that she was guilty and should pay a fine for voting as a woman. o At the end, the judge asks her to make her case, and she makes a long speech.

Suffrage: who is the state?

Who gets to vote in this period? • Most states still have property requirements in this period. o Because of this, nobody thought that hard about who voted beyond whether you have property. Women and slaves vote where they have property after the convention NJ: women with property vote until 1807. This changes with dramatic national expansion

Theodore Roosevelt

becomes president when McKinley dies. He had been a progressive during his time in New York.

National Women's Suffrage Association

big mainstream assoc; woman comes up with secret plan early on; strategy of how over 40 years they are going to get it. • Woman on left, on this slide.

How did Randolph's Virginia Plan (May 29) arrange the government and representation? What parts were accepted? What parts were debated?

branches of government o Congress Bicameral congress. • The first house elected by the people (proportional representation) • The second elected by the first. Each of the branches can create laws, power relatively broad to create "harmony" between the states. o Executive Not necessarily a single executive o Judiciary Supreme and inferior tribunals Appointed by the legislature. o Council of Revision Executive + members of the judiciary has veto power over legislation. Can veto state law, just like the colonial system. The small states do not like the Virginia Plan New Jersey Plan

Benjamin Cardozo, The Nature of the Judicial Process (1921)

brew, gut feeling; radical; mere mortals; rationalize; push back against liberty of contract

In the Rhode Island cases, what is the community using the legal system to accomplish? What is the relationship between law and the construction of the community?

brought up from pregnancy w/o marriage Marrying fixes the community problem/establishes paternity and child support

1785 Treaty of Hopewell

delineates the tribe's land. Asserts federal control over issues about trade and management.

The Morill Act (1862)

federal legislation regulating against polygamy. upheld in Reynolds by SCOTUS. Chief Justice: polygamy has always been odious among Western nations... until Mormon church, was just in African and Asian nations.. legal for Congress to regulate.

The promise of the 13th - 15th Amendments

for a moment, promised an end to a world in which the assumption was that white people held political power and that there was a legalized racial caste system. Conversely, legal segregation expands and the Court accepts it as a social issue that does not have a legal resolution. The racial caste system actually expands.

• Liberty

how to avoid power concentration? o Bicameralism and SOP - but confused o Checks and balances are not worked out in this period. o Not everyone agrees there should be bicameralism. PA, VT, GA all have unicameral. Today, Nebraska is unicameral. o Minnesota: Jesse Ventura: why do we have two houses? In federal govt, the people and the state. In the state, who do they represent? The people and the people. Because states do not have the same divisions as federal. o In this period: you need two branches, because Parliament has two branches. o Parl had 2 branches because: one branch of Lords, one of Commons. o So Congress tries to come up with elected Lords. o People thought there must be two branches. o So: you have them represent people who own two different amounts of property. Richer people and poorer people. o People feel it is good to have two branches, because, in terms of actual legislation: checks and balances. o If unicameral system, things get passed faster. o They are not sure which powers are separated, and what are the branches. o MA is first constitution to create 3 articles, and put each article with a big function.

• Problems of a written constitution • Consent

how to create a legitimate government? o Solution: continuous consent of the people o You need consent. o The old way constitutions worked was that there had been historic consent. Before the Normans took over, that was what British held to. o Americans need to have actual consent somewhere. o How do you figure out if everyone consents? o Not every individual person actually consents.

NJ Corporation Act

no special charter, can hold stock of other corporations. NJ thought they would get a lot of tax revenue by allowing this. NJ law is actually repealed, but by that time Delaware had passed a similar law. o Birth of the Modern Corporation - These are the types of statutes under which corporations are created today. Could control the whole corporate universe under one name.

What arguments were made in favor of woman suffrage?

o "Citizen" = voting power. o Women represent their own interests better than men do o Women are more educated than black men, so it makes more sense to give women the right to vote. o By giving only black men the vote, black women, particularly, remain enslaved.

How does FDR explain his court-packing plan?

o ***Who the justice is, when they are born, from where they come, ALL MATTERS*** The Constitution is understood generationally: Conditions have changed, so too should the Constitution be adapted.

Political Progression

o 1914: passes Senate, but loses the House o 1915-16: Wilson supports privately, but not publically. o 1917: US enters the war o 1918: Wilson needs to get elected, agrees to support the vote. o The House votes for suffrage, the Senate defeats it. o May 1919: Women's suffrage finally passes both houses of Congress. o Sent to the states to be ratified. Wisconsin is the first state only because of a certification error in another state. Comes down to Tennessee, 36th state. • Harry Burns is all that stands between women getting the vote or not. • 24 years old, youngest member for the TN legislature • His mom tells him to vote for suffrage - don't forget to be a good boy. • He votes that way in the end.

What criticism of mid-century America is Melville offering in the story?

o 19th Century corporate economy o Slavery • Begins to ask: Is the profession losing its focus as it becomes increasingly interested in the large-scale development of the national economy - an economy based on slavery.

The Homestead Riots (1892)

o 4/5 of the steelwork plant goes on strike. Not all of whom are union members, but out of this comes a large union movement. o Carnegie authorizes the Pinkertons to go break up the riots - killing a bunch of the workers and the detectives. o The jury refuses to convict the workers of committing the crime. o The establishment is abhorred that the corporation's property right in the factory is not being upheld by the law. • 4/5 steelworkers go on strike; Carnegie breaks it up, killing some; jury doesn't convict • Establishment worried about jury nullification for the workers; more hours and wages swell

Ratification Procedure

o 9 states needed to ratify (DE is first) o most concerned about getting NY and VA • Congress was sitting in NY; Madison and eople raced there and headed off an effort to sink the whole thing in Congress. It was suggested that before it go off to the people, it should be re-debated in Congress and amended. They sink that, and convince them to let it pass through Congress and go to the people. • Because of that, it will go out to the people, and the Convention did not specify ratification procedures. • MA quickly says they will appoint a new Constitutional Convention to ratify it, so everyone else does that too.

o 20th Amendment

o : Inauguration of President Long lame duck session under the prior regime. Suddenly, as more power is given to the national government, Congress matters more and more and so they need to get stuff done. They need a president to preside over the Congress. Still a lame duck session, but only for a month - December to January.

o 16th Amendment

o : Income Tax - Beginning of nationally dominated government. Culmination of Progressives' campaign to get the income tax. More personal relationship to government Some see this as redistributionist Beginning of thinking of one as a citizen of the national government and not the state government. Allows the government to grow exponentially. IRS also becomes the individual's most prevalent relationship with the government.

What arguments were made against women's suffrage?

o A majority of women don't want the vote. We should respect majority. For a long time, this argument was true. o Women are more suited to control morals and values in the domestic sphere than the public sphere. The chaos at home also speaks to men not being in the home. They have their own spheres and those should not be disrupted or changed to overlap. • It is a Democracy; needs to be voted on to give a the right to vote; most women don't want it • Part of the man's domain; have our clubs, no need for anything else; don't want military or politics • Question about physicality and frailness of women too; have to "personally enforce" rules

1801 Judiciary Act

o Adams tries to packing the courts - leads up to Marbury v. Madison • right before Jefferson; creates new circuit justices, change justices to 5 • Adds Federal question jurisdiction; Republicans repeal in 1802, start impeaching judges; big power grab

Lincoln and Slavery

o Against slavery o But, also against abolition o Into the 1840s, he sees slavery as a regional, not a national problem o Backed Taylor for president - a man who owned slaves o But, voted free-soil positions after that. o Illinois is against slavery, but also envisions itself as a place where only white people will live. o He is for colonization, which makes a comeback in the 1850s. o While running for Senate, he explains how he feels about race: I will say that I am not nor have ever been in favor of bringing about social equality of the races. Isn't in favor of interracial marriage, voting equality, and that there are natural differences between the races. Superior position belongs to the white race. Not sure whether this is his real belief or if he was just running for office with this language. From our perspective, he is racist From the perspective of the Southerners, he is very scary as against slavery.

• July 1776 - Declaration of Independence

o America finally breaks from England.

• 1764-1768 - British Acts (Stamp, etc.)

o Americans are not too happy about this o Troops begin to be quartered in America in a greater number to prevent disruption.

William Jennings Bryan's Cross of Gold Speech (1896)

o As a young man, Bryan was a passionate political figure o At the end of his life, he became a very different person, playing a large role in the Scopes trial. o During this speech, he represents the Populist Party. o Specifically, he is arguing that the U.S. should go to a bimetal system and get away from the Gold Standard. By sticking with the Gold standard, the money supply would be limited, thus hurting poor people. They would have turned to backing money with Silver, thus expanding the availability of money. • Pro-income tax populist; against teaching evolution in Scopes trial; successful third party candidate • Speech for the gold and silver standard; super complex bimetal system for economic stability

What assumptions about governance and authority appear in Winthrop's speech?

o Bible and politics closely related; thought people were rich or poor as ordained by God o Duty of the poor person to play their role/not to protest; have political power thanks to God o God intended for inequality; rich must be merciful o City upon a hill: people look to us, and if we fail, people will think God is not favorable for us

US v. Wong Kim Ark (1898)

o Born in the United States o Those arguing against him say that he cannot be a citizen because his parents were Chinese immigrants. o Oral argument: The reason for this is because someone with Chinese parents could become president. o Supreme Court: 14th Amendment says all people born in the United States = citizens. o The case, however, does nothing to suggest that people who were Chinese and Japanese could not be barred from becoming citizens or owning land. o The issue now is what in the end does citizenship get you and who can become a citizen. o Was born and raised in CA, prohibited from reentering the US after leaving to visit his family in China o In oral argument it was argued that of course he can't be a citizen, because if he is a citizen he would be able to become president (and he's not what a president should look like) o Court held that it is a citizen o Harlan dissented

• 1760 - George III comes into power - not a very strong ruler.

o British politics swing with who is advising George. o Some people get into his good graces who think that the Americans should pay back the debt and be more thankful in doing so.

• 1773 - Boston Tea Party

o Brits are furious

• 1775 - Lexington and Concord

o Brits are worried about arms being stored in a vulnerable area, susceptible to militia taking them. o 8 people die - more British than Americas. o British say that the Americans are in open rebellion and consider themselves to be at war o The Americans don't think this way because they want to make sure all colonies break from England.

• 1756 - Seven Years War in Europe and the French and Indian War on the American continent

o Brits send a lot of people over to America to defend the colonists, spending a lot of money doing so. o Because of that expense, when the war was over, the British thought that the American colonists should repay some of that debt.

How are Lincoln and his generals discussing emancipation prior to 1863?

o Cabinet tells him that he must wait for a Union victory before announcing it. o Finally, the Union technically wins at Antietam even though many losses. o He says that as of January 1, 1863, slaves will be free in those territories that have rebelled against the United States. Exceptions for those states/counties within confederate states that have remained loyal to the Union. o Authority: War powers Moral justification - the gracious favor of God and an act of justice.

Case of Fernando (1667

o Claims he should be free because he was free before coming to America. o He shows papers in a foreign language that ostensibly prove his freedom. o 2 claims: He had been to a free place for a long time and is now just coming back. He also claims that he is a Christian and so should be free. o We don't know the resolution to this case. o But, telling that he is black, but is allowed to try and prove his freedom.

• 1774 - First Continental Congress

o Colonies get together and decide to do something, but not sure what yet.

Civil Rights Act of 1875

o Creates federal cause of action when one is prevented from places of public accommodation based on their race. o Never covered private homes or clubs, just public places where you already needed a public permit to be in the first place. o Non-private places cannot discriminate based on race - the goal was to stop the beginnings of segregation based on race that was beginning at this time. o Had the 1875 Civil Rights Act not been overturned by the Court, the history of this country would be drastically different.

How is the confederate Constitution similar to the United States Constitution? How is it different?

o Differences Preamble: explicit reference to god in the preamble. Much more explicit states rights approach to federalism than the US Constitution. Explicitly uses the word slavery and requires any new state joining to allow slavery. Property right in slaves - your right to own people is fundamental and applies no matter where one travels. Outlaws the importation of slaves with the idea that those imported would be sent to overthrow the institution. o Similarities Uses the US Constitution as a base.

U.S. v. E.C. Knight Co. (1895)

o Does the Sherman Antitrust Act prohibit these types of corporations? o American Sugar owns 98% of sugar production in the United States. o HELD: manufacturing is different than commerce; it predates commerce. Thus, Congress does not have the ability to govern under the Commerce Clause They did not strike the Sherman Act down as unconstitutional in its entirety. They just gutted it by severely limiting its applicability and scope. o HARLAN DISSENT: Impossible to distinguish in any real way manufacturing from commerce. Sugar, moreover, is necessary to everyday life, so it should be protected from the monopolization of the corporation. Protect the little person from the giant corporation. • Owned 98% of the market for sugar refineries; majority says control is at the State level • Harlan dissent: says it is the only game in town; impossible to distinguish from commerce • Wants to protect the little person from the giant corporation; Feds the only game in town • Constitution should be able to reach it; in the end, Harlan generally wins; acceptance of regulation • Sherman breaks up Standard Oil in 1911 under a reasonable test; unreasonable restraints on trade

Civil Rights Cases (1883)

• Civil Rights Cases - Overturning the 1875 Civil Rights Act o 14th Amendment We must read the 14th Amendment very carefully State Action Doctrine: The only thing that the 14th Amendment protects are things that the state does itself. It does not limit the action of private parties. o 13th Amendment Applies only to slavery and nothing else. o At the time, this opinion was a complete fiction Colfax Riot: • Republican political rally • Paramilitary group there killed 100 people. • Crookshank was sued under the KKK Act for violating peoples rights. • In this case, the Supreme Court says that there was no wrong here under the KKK Act because this was the act of a private party. • Foreshadowed by a previous case: US v. Crookshank (Colfax riot) o In the midst of a republican party rally Crookshank killed tens of attendees, he was convicted but his conviction was overruled o Court says that the federal government cannot

Edward Coke, Commentary on Littleton (1628)

• Coke became a lawyer in 1578; became Attorney General to Queen Elizabeth I just 12 years later. • Sat as Chief Justice on King's Bench until 1616. • Authored number of famous pinions, Coke is perhaps best known for updating a work written by Judge Littleton. • Contained four volumes.

English Governance in America by 1700 - Constitutional boundary

• Colonial law not repugnant to the laws of England • Laws couldn't be too far off from English law, but that took a long time and a great physical divide to figure out. • Privy Council reviews colonial laws and hears appeals in cases. • All laws have to go back to the Council. • Cases will sent by appeal, if you are rich enough, to England.

Slavery in the territories?

• In the 1840s, a great amount of new territory becomes a part of the United States. • 3 different positions in Congress: o Free soil: basically the Douglass position. Congress had to require territories to come in free. NW Ordinance was seen as example of that. Congress only has the power to make the territory free. The people have the power to make it a slave territory if they so desire, but that would come later. o Popular Sovereignty: moderates among N and S. Congress should notsay anything about slavery; would just form territories, would not say anything about whether slavery or not. People in state can decide. Congress has no power over the territories, they can't say one way or the other. Anyone gets to move to the territory Later on, when they apply for admission, they get to vote how they want to come in - slave or free. • Congress has no power to regulate slavery: the position Taney advocated in Prigg. Garrison agrees with this. the Const is pro-slavery in a deep and profound way.

Reprise: Colonial Period: Lawyers Without Law Schools

• In the Colonial period, lawyers didn't really go to law school, they were apprenticed under a lawyer. • William & Mary (1779) (one professor), Litchfield (1784) (obtained a treatise on American law by copying all that was lectured to you)

North

• In the early 1800s, the northern states were all free. Many states had gradually swung people that way by changing slaves into indentured servitude and then eventually emancipation. • By 1805-1810, most of the blacks in the north were free. (85-90%) • This movement was spurned on by strong abolitionist groups in these states.

Another Racial Limit on Citizenship: Chinese Immigration

• In the post war period, Congress and the Court turn toward the west coast • Chinese immigration began in the 1840s and 50s, constantly met with hostility at the state level • 1879 CA constitution is explicitly anti-Chinese • for a while the Republican party stood against the anti-Chinese pressure but slowly moves away from treating it as an important issue • 1880s • Congress passes Chinese Exclusion Act: cannot emigrate from China • Legislation prohibits the naturalization of Chinese immigrants • At this time, we're just talking about Chinese, but soon Japanese will immigrate too. • In the late 19th century, Chinese immigration in CA was very high • When the Republicans and the court turn toward business, they join the side of anti-Chinese sentiment in California. • By 1875, Chinese have no right to vote in any election and can be removed from towns in the state. • Yick Wo • Wong Kim Ark

How might changes in the regulation of the family affect the suffrage issue?

• Increased Regulation Leads to Women Wanting the Vote More By the 20th century, state regulation touched women's lives in many ways. • Women had, therefore, become very active publically in trying to change, alter, or support specific regulations. • Thus, women begin to push harder for the vote.

James Madison, Vices of the Political System of the United States

• Drafted notes in the spring of 1787 as he was preparing to attend the Convention at Philadelphia to revise the Articles of Confederation. • Wrote an extended discussion of vice number 11 that explained his theory of the "extensive Republic." • This theory suggested that the problems of republican government - in particular, the problem of majority interests and passions overcoming the rights and interests of a minority of individuals - would be lessened in a large republic because the many interests would check each other and like-minded individuals would have 'less opportunity of communication and concert."

Dred Scott

• Dred Scott won in the Missouri courts - if the person takes a slave to a free state and he stays there long enough, he is free. • Dred Scott, however, lost at the Supreme Court. • African Americans were not citizens at the time of the Constitution • The Missouri Compromise is unconstitutional • Once a slave, always a slave.

What kind of law books were used by 18th century lawyers? What does the use of these books suggest about colonial legal culture and legal education?

• During the 18th Century, books are the lifeblood of the lawyer. Lawyers can sit for the bar without going to school - all they need is the requisite book knowledge. Types of legal materials used: o Statutes books o Justice of the peace manuals o Don't publish opinions until 1789 • William & Mary - George Wythe sets up law school

Lincoln's Address at Gettysburg, Penn. (1863)

• During the Battle at Gettysburg, the Union Army losses were over 23,00 and Confederate Army losses were over 28,000. o Beginning of the end of the war. o Public opinion shifts as to what the point of the war is. o New goals for a new understanding of the nation to in some way explain this massive loss of life.

Cherokee background: early 19th century stabilization

• During the Revolution, the Cherokee sided with the British against the Americans. • After the Revolution, almost all of the Cherokee's land was within state territorial claims in the South. • Once the cotton gin is invented in the late 1700s, there was a desire for huge tracts of land because it was now easier to farm larger areas. • After 1790, the Cherokee's stabilized, and their population and assets began to grow • One of the largest tribes East of the Mississippi; 22k; mostly GA, TN and Carolinas • Crash in population below 10k from smallpox; loss of land; side with British during the war • Diminished land after Revolution to 50-25% in 1790s; then stabilize, back to 22k in 1832 • Participate in southern agriculture, have black slaves; form bonds with Seminoles

Address by Elizabeth Cady Stanton to the Legislature (New York, 1854)

• ECS advocated women's rights to participate fully in all areas of social, intellectual, and political life. • All about rights; two versions; women can do the work of a man; consequently, should have rights • Analogizes to slavery; wants to be tried by a true jury of peers •

Lincoln's Election (1860)

• Elected in 1860 to the Presidency o Helped immensely by the fact that the Democrats run two candidates, one free soil and one pro-slavery. Splits the vote. o Goes into office as a sectional party president - with only 40% of the popular vote. o To Southern politicians, Lincoln sounds anti-South, not just anti-Slavery. o South Carolina Immediately Secedes. • The Democrats ran two candidates; Lincoln only wins 40% of the vote; no slave state votes for him • SC secedes immediately; Crittenden Compromise floated: would restore Missouri compromise • Corwin Amendment: would have prohibited federal interference where slavery existed; no dices • Shooting begins on April 15, Robert E Lee turns down Union army to go to south; home is Arlington

Declaration of Independence

• Final version was written and accepted on July 4, 1776. o Every complaint is a legal one o "When in the course of human events..." o governments derive their just powers from the consent of the governed, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it o history of the present king is a history of tyrannies o quartering armies; keeping standing armies during peace time, deprived us of trial by jury

The 1850 Compromise

• Finally, in 1850, the debate is ended in theory by the 1850 Compromise o Northern politicians went along with this because they were desperate to get the railroads to the West. o Decides all of these things: Slavery will be allowed in DC, but the slave trade is ended there. California will come in free Utah and NM will come in under popular sovereignty Passed the Fugitive Slave Law • This was designed to be a compromise

William Blackstone, Commentaries

• First American Edition subscribed to by everyone who was someone in American politics and the law at the time. • For most people, it was very helpful. Jefferson did not appreciate them. • In some ways, the way that we study law today owes much to Blackstone. • Blackstone was much more important on the American side of the Atlantic than he ever was in England.

The "First New Deal" (1933)

• First New Deal: Regulatory o FDIC - Government insurance of bank accounts o SEC o Regulated capitalism at the margins Insufficient to recover the US economy. • the first New Deal conservative/minimalist; regulatory in nature

What does the passage of the 11th Amendment (1795) suggest about views of the Court and the Constitution? What does it suggest about constitutional interpretation and the understanding of the constitution?

• First time people realize that a written constitution changes the game; initiates the 11th amendment

Static vs. dynamic property: Charles River Bridge

• Harvard owns the right to a toll bridge from Boston to Charlestown. • The legislature grants a charter to another corporation to build a bridge over the river. • Harvard argues that there was an implicit right in their bridge charter that their right to that money would not be infringed upon. • TANEY ("Tawney"): There is no right to a monopoly here. We can't construe ambiguities in charters to the advantage of the private party because we don't want private parties to trump public purposes. • STORY: We want to advance our country, and incentivize people to invest and build, so we shouldn't undermine investment backed expectations

Margaret Fuller, Women in the 19th Century (1845)

• Has been called "America's first female intellectual prophet" • Taught at Greene Street School in Proidence, essentially college-level classes for girls, who were barred from higher education. • Began offering women's groups in Boston, where she taught women to value specifically "female culture" and to move away from the drudgery of 19th century life to realize their potential. • Life sparked controversy around the world; had variety of relationships with men around the world.

South Carolina Slave Code and Apprentice Legislation (1740)

• Has now completely separated the statues. • Race is completely dominate - free blacks, mestizos, native americans, anyone not white, are governed by the part of the code. • Indentured servants are now termed "apprentices" rather than just a piece of property. • Race dominates; freed blacks and non-whites are governed by their own code; apprentices for whites

Compromise of 1877 and Jim Crow Laws (1875, 1908)

• Hayes becomes President. • But, as part of the agreement for allowing Hayes to become president, the Republicans agree to stop enforcing the enforcement acts and take troops out of the South. • 90% of African Americans lived in the South at that time and Jim Crow set in almost immediately.

• Politics

• Helps immensely here. • By 1914, suffrage amendment in regular rotation. Win in Senate, defeated in House. • With the war beginning to be seen in Europe, they decide of they can get Wilson on their side, will be in better shape. By 1915-16, Wilson says: "I personally believe in women's suffrage, but it is up to other people to make the choice." • US enters the war; Gibson girl, I want you for the Navy Wilson decides he needs women's effort for the war; supports it in public way in 1918. He starts to bring the White House political arm. • House votes for it; Senate defeats it. • It keeps getting pushed over and over. • No votes from the South or MA for women's suffrage. MA: "Do not join hands with these enemies of the home and Christian nation. Part of feminist movement; wanted by every..." Look at the slide, on the right. MA very conservative on this. • Wisconsin and Illinois race to be first to ratify it. Need 36 to ratify it. Comes down to Tennessee, whole thing swings on one guy, Harry Burns. • We will see Harry Burns again. 24 years old. His mom writes to him, telling him to be a good boy. He votes yes. Remember Catherine Beecher.

Sir Humphrey Gilbert - Patents

• His half-brother, Sir Humphrey Gilbert, had obtained a letters patent from the English crown in the 1560s to Ireland. • In 1578, Gilbert acquired another letters patent to create a settlement in Newfoundland.

Philip Hone, Description of Lawyers (Mid-19th century)

• Hone kept what became one of the most famous diaries of the early 19th century; filled 28 volumes. • Recorded his daily activities and political, financial, and cultural life of NYC.

What was Ellsworth's suggestion (the "Connecticut compromise") (June 29)?

• House represented by the people (proportional) • Senate represented by the states (equal) 1. one house representing the states with equal representation (the Senate); and other house with some form of proportional representation (House of Representatives). • This is suggested right at the beginning; solves why you have bicameralism, gives two important ways of being represented. But Madison et al are so determined to destroy state representation that they argue for a very long time. • For almost 2 months, they debate what kind of representation. Finally they lose, and then just move on. • This is the system that we have.

What do the Howard and Hall cases suggest about early Virginia and the regulation of sex, gender, and legal authority? What is the community attempting to regulate? What role is "law" playing in constructing the community?

• Howard: The law is concerned with the question of infanticide only. The community would be concerned with this question because it would make the community look bad if people were getting away with committing infanticide. Notion of the line between private and public is very different now than it was then. • Hall: Again, this is only an issue and a case because it is offensive to the community to have someone of an indeterminable gender o Similar with the Olympics today caring about sex; same-sex relationship rumor was upsetting o Declared as both; has to dress both ways to not confuse people; no further choice, but community ok o Punishment to help the community; servant without family; vulnerable o How do you decide whether intersex people could inherit property? o What matters in this world is the property piece. o In our world, we still have issues where intersex is a legal issue: prison issues, bathroom issues, people who work in public school systems with children who are trans; places/ institutions that sort people by gender. Marriage. Military (submarines, flying). Olympics sports - international sports federation spends more time worrying about sorting people. o Now, we would use the person's requested pronoun, but we don't know that. raised as a female as young child; becomes a man to join the military; changes to woman to do sewing; changes back. This is a person deciding how they will appear, in a world where economic opportunities are gendered. Moving across that line. o Why do they care? He/she slept with someone, and somebody heard about it. o In a lot of these cases, we will watch how law often focuses not on the action, but the fact that there is a rumor. o What it says about community's need to sort people

The Proprietors of Charles River Bridge v. The proprietors of the Warren Bridge, and Others (1837)

• In 1650, MA Legislature granted Harvard College the "liberty and power" to keep a ferry between Charlestown and Boston, including the profits, until 1785. • In 1785, the Legislature incorporated a company, the Proprietors of the Charles River Bridge, to build a bridge in the place of the ferry. The company would then run the bridge with tolls for 40 years, with payment of 200 pounds to Harvard. • Afterward, the bridge would become state property, with some "reasonable annual compensation" to Harvard for the annual ferry income. • The bridge opened in 1786. In 1792, the charter was extended for 70 years from 1786.

Two States Mark this Period: Connecticut and Rhode Island

• In 1776, Connecticut and Rhode Island say that they are just going to take their colonial charters, remove the mention of King, and call it their Constitution. • Into the late 1820s, Connecticut keeps their constitution. • Rhode Island kept it until the late 1840s.

Prigg v. Pennsylvania (1842)

• In 1862, PA passed a law making it a felony to carry away or attempt to carry away "a negro or mulatto" with the intent of selling or keeping the person a slave or servant for life. • Margaret Moran had escaped to PA from MD. Edward Prigg was hired to seize and bring Moran back to Maryland. • PA courts upheld Prigg's conviction under the 1826 law. • Black woman in PA was supposedly an escaped slave. • Owner hired a man to bring her back. • Problem was that PA had passed a law outlawing anyone bringing a person from one state to another. Story - Low-level anti-slavery thinker • Fugitive slave clause must be upheld under the Constitution because the Constitution wouldn't have been created in the first place if slavery was not maintained in the South. Thus, this must have been a property right over slaves. o This comes directly from Madison's notes published a year earlier. • All power over this type of property is vested in the Federal Government, not the states. • Giving power to the federal government is a good thing for a thinker like Story if he thinks that over time the federal government will come to the right thinking and abolish slavery. • Doesn't discount the notion that the slave is property, however.

The Beginning of the End of Political Power and Participation

• In 1872, there was an economic depression. • The Republican Party decides that it cannot focus on the race issue. Rather, they decide to become a party in favor of economic growth and free labor. • At the same time, a group of Republican justices decide the Slaughterhouse Cases • The Republicans who were left over from the war years passed one last bill in an attempt to fulfill the goal - The 1875 Civil Rights Act • Civil Rights Cases - Overturning the 1875 Civil Rights Act

Inheritance Laws Circa 1720

• In England, intestate propery usually passed according to primogeniture. Under primogeniture, the eldest son (or eldest male relative) took the land. • Women lost rights over property when they married. H and W were seen as one. • In the colonies, the widow's share of real property was a 1/3 interest in the estate for life, and a share of the personal property. The intestate division among children differed.

Ordinance of 1787: Northwest Territorial Government

• In July 1787, Congress passed an ordinance establishing laws governing the territory east of the Mississippi and north of the Ohio Rivers - what would become Wisconsin, Michigan, Illinois, Indiana, and Ohio. Happening at the same time as 3/5 Debate in Congress • Slavery is outlawed in the Northwest Territory • First significant abolition in the United States, even though it technically happened under the old Congress. • Beginning of ensconced sectional division regarding slavery. • People are thinking about the extension of slavery throughout the remainder of the country, but the Southerners knew there was a lot of space left beyond the Northwest Territory.

Virginia Infantry Resolution (1865)

• In November 1864, Confederate leaders began to debate whether slaves should be enlisted and, if so, should they also be emancipated upon enlisting. • General Robert E. Lee agreed with the idea of enlistment and asked soldiers to record their support or opposition to the idea. • The document was adopted by 325 officers and enlisted men with 14 dissenting votes. • On March 13, 1865, the Confederate Congress gave the Confederate President Davis the authority to ask owners to "volunteer their slaves for service in the army."

o A "Slave Society"

• In both N and S, slavery was embedded, and completely racialized. • Drew a binary line and drew two different statuses. • Title page of the Federalist papers: picture of tobacco plantation with people slaving away. • Portrait of grandchildren of Virginia Governor; has slave at the side. • Picture of Washington and family: William Lee on right (only person freed by Washington's will). Lee was so much a part of the family that he was in the picture on the side.

A Court of New Dealers

• In serving four terms, Roosevelt packs the Court in the end anyway. • Appoints Black, Reed, Frankfurter, Douglas, Murphy, Jackson, Rutledge, and Byrnes • If you are a 4-term president, you get to choose a lot of justices. He packed the court, but legally - got to replace everybody. • Everyone he appointed to the Court was a Progressive. They had all defended the New Deal as AG, etc, head of SEC; wrote extensively as New Dealist. • Carries through on his idea that what the Court needs is people who understand that law has to confront new realities. • What will they go on to do - with rights going forward - we will turn to that story on Weds.

Antislavery and abolition views of the Constitution

• Increasingly during this time, anti-slavery people become completely abolitionist. Douglass: Calls freedom a hypocrisy; nothing in the Constitution that makes slavery clear; for the northerners You guys got freedom, what about me; slavery exists everywhere; no free state left Constitution does not mention slavery from a plain reading; can't support as a Christian Lysander Spooner Argues that since there is no pro-slavery clause, judges should presume Constitution is against it Wendell Phillips, Review of Spooner (1851): Abolitionist; believes the Constitution was about slavery; pro-slavery Constitution Recommends that judges resign; leave and pull away; William Lloyd Garrison would tear up the Con Continuing issue: do you reinterpret the Constitution or change it

Ku Klux Klan Act (1871)

• Intended to enforce the right of all citizens to vote. o Section 2: goes after people who disguise themselves and prevent the equal protection of the laws to all people - directed toward KKK specifically. o If one knew of something bad that was about to happen, but did not speak up, he was criminally liable. o Grant brings troops in in some places, puts prosecutors into place, suspends habeas corpus in Georgia so that the Klan cannot get out of jail immediately while being prosecuted. o Tremendous moment of federal prosecution and protection of the right to vote. • Enforcement act passed under the Grant administration • Carefully designed to prohibit the terrorizing conduct of the KKK, and deals with the fact that even if bad actors were apprehended they might not be brought to justice (requires prosecution, prevents trial by biased juries) • The Act goes deep into an understanding of how to deal with crime

How does the Revolution alter the status of women? What aspects do not change? How is the status of women understood by male revolutionaries?

• Internal Dissonance: Even the people with the loudest rhetoric don't completely agree with the full extent of their logic. - Women and Children and Slaves and non-propertied men shouldn't have the right to vote.

Chisholm v. Georgia (1793)

• Involved a South Carolinian who sued Georgia. • Georgia refused to appear. • Supreme Court Justices concluded that Georgia could be sued in federal court. o In reaction to this case, the states ratified the 11th Amendment o Gives the Constitution legitimacy and power • Chisolm from SC, delivered clothing during the war to GA, was never paid, executor sues • GA didn't show up: they'd rather be in GA court and it makes them seem like they have less sovereignty • Holding: Constitution allows GA to be sued; huge backlash; the court will read the Constitution?

A Model of Christian Charity

• John Winthrop Composed aboard the Arabella on the Atlantic. • There is inequality in the world because God intended it that way • Winthrop asks for the rich, powerful person to be merciful toward the poor. • Corporation and representative power is good, but they accept inequality and are not "democratic" in the modern sense. o The poor are supposed to be subservient. • City Upon a Hill: The rich/poor dichotomy drops out over time and the city upon a hill language remains. o Winthrop is conscious of the fact that failure of the corporation will be a failure of a much larger set of political ideas.

Harvard Law School, Cost and Curriculum (1834)

• Joseph Story's "Cost and Curriculum" of Harvard Law School. - extremely low barrier of entry. o Why should you go to law school: to become a lawyer or to learn for those who aren't going to be lawyers. Necessary to get money and survive as a school in a world where you don't have to go to law school to become a lawyer. o Could get into law school without going to college first. o No standardized test, but a signed statement of good character from people who know you. • Curriculum o A lot of reading - the law school is selling its library its size - LAW IS IN BOOKS o Courses: Constitutional, admiralty, contracts, evidence What does Harvard have to offer to compete with more practical proprietary law schools? • Connections

Mississippi "Black Code" (1865)

o Regulates the participation of blacks in society. Tries to limit the language so as not to declare blacks as citizens, but only freedmen, Negroes, mullatoes. o Contracts, testifying, employment, marriage o Basically just adjusting the slave codes to a post-13th Amendment world. o This code is focusing on real property and personal property. Blacks, under this system, could own personal property, but not real property. o Employment: If the person stops working in breach of their contract for employment; they forfeit their wages for the entire year, even those that they have already earned. - Basically slavery in a different language. o Marriage: the code says that blacks may get married. However, they make it clear that miscegenation should not occur. Penalty is jail for life. o Replicates slavery in all sorts of ways • Slavery in all but name; must sign a contract to be a laborer; if you run, you lose wages/brought back • Could own personal property, but no real property; no interracial marriages; applies back 3 generations • Limit on criminal rights; across the southern states; progressive southerners saw it as progressive

What is the vision of constitutional interpretation expressed in the VA and Kentucky Resolutions?

o Virginia and Kentucky pass resolutions claiming that these acts are basically unconstitutional as depriving citizens of due process, right to a trial, and because the federal government does not have power over states citizens on their soil. • The Resolutions suggest that the states can object to things being unconstitutional. • KY says: you should repeal the unconstitutional and obnoxious acts. VA says: the other states should join us in declaring them unconstitutional. KY: we enter a protest. They say states should be able to object. • Significance: nobody else joins VA and KY. They do not like the Alien and Sedition Acts, but do not believe they have the power to declare them unconstitutional. Vermont says that is SCOTUS job. So the Resolutions, in the end, reinforce the belief that SCOTUS is the one whose job that is.

Witchcraft Explanations - Religious

town church vs. village church • In this world, people believed that their fate (heaven/hell) has been pre-ordained, but that you could figure out through signs in this life, where you were going to end up. o If bad things happen to you in this world, it suggests that you're going to hell. • Thus, in rationalizing bad things happening, your choices were: o You're going to hell o OR, a witch inflicted you with this bad thing and it has no bearing on whether you are going to hell. • Most of initial accusers were members of same church; most of accused did not attend church.

Witchcraft Explanations - Religious

• Licensing

• : However, during this time, marriage license statutes proliferated. Had to meet many qualifications to marry o No VD o Pure blood o Mother's and father's status o Sane • This led to a decline in common law marriage. • Worried about the constitution of our society where many immigrants come in and have large families. Many people thought that the state had a right to control the demographics of the nation. • Many people were barred from being married: o Epileptics o Cousins o Mentally infirm o Those with VD o Race

• Amendment

• : how to change it? o Many solutions

• Fundamentality

• : the constitution vs. statutes? o Solution: Ratification (Mass. 1780) o Con law assumes it is fundamental. o At that moment in time, why did that document control other documents? o Some people: just say this one is fundamental. We will just say so. o Over time, people start to say, let's elect new people, have a Convention, have special people write it, and then that one will be fundamental. Virginia did this. o But why was the Convention more important than writing of statute? o MA invents the idea of ratification. o If you have the towns write the legislature: back and forth between legislature and towns; then have the people agree - all the back and forth somehow makes a difference. o This became the way all constitutions were made: what makes it fundamental from 1780 on, is ratification by some group of people. o This begins to make CT and RI insecure - they have charters that are not ratified. o CT abandons colonial charter in 1820s; RI in 1840s. So ratification was not completely universal.

Wightman v. Coates (1833)

• A man exchanged letters with a woman and led her to believe that they would be getting married. • He then married someone else. • The woman sued under a breach of contract theory, claiming that he had promised her that they would be married. • She suffered damages because she would never have the support of that man and also would be tarnished forever having another husband. Thus, she will never have a job and because she is not expected to work, she will not have any prosperity. • She wins. This was common type of case. Where judges find for women because it is important to find for women / they are sympathetic to women - it is more harmful for a woman to be abandoned. She is never going to get a second chance; she is doomed to the solitary life. Women rely on husbands. Assumption is she has to be a virgin, if she is going to get married - to get married, have to be sexually untouched; career is as a mother - whole worldview/vision of women, on which these cases are predicated. • Judges are sympathetic; people can be persuaded by emotional behavior.

Thomas Wood, An Institute on the Laws of England (1724)

• A trio of works. • One argued for inclusion of the study of law at the universities. • The other two rovided a guide for the understanding of the common and civil laws. • Wood recognized the importance of possessing at least a general knowledge of the common law. • Intended readership was members of the gentry and merchant classes. • Made their way across the Atlantic and were part of the collection of materials often relied upon by early American lawyers.

What is a constitution: American meaning of "Constitution"

• Americans decide they need to have a more rigid constitution with true boundaries that constrict the power of governmental actors. o Colonial legislatures had always had limited powers because the King could essentially veto any law passed there anyway - always had to pass their laws along to England. • We decide that only democracy is important; world where that is crazy; framers recreate HoL • World where there isn't really a judicial branch; judiciary was either appointed or controlled • Shifted to a written document because of written charters from King • Privy Council check-ins; either the negative/disallowance or ascent; 5-8% of laws were struck down • Very different from Parliament, where no one could tell them what to do; RI had no privy council, last

The Slow Path to Revolution

• Americans in government and leadership positions before the revolution were lawyers or studied in law. Thus, the revolution was highly based in the law. • The Revolution had begun basically 20 years before 1776 and ended about 20 years after that. There was about 40 years of transition. • Lawyers were very involved; surprisingly legal revolution; instigators of the rhetoric; controlled outcome • Still has impact; political leaders tend to go to law school, even if they don't tout it; slow path

How does Margaret Fuller understand the role of status and women?

• Analogizes anti-slavery efforts to women's efforts and women to slaves. o Where coverture governs and women do not have control over their property, they are akin to slaves who are themselves property. • Transcendentalist thought applied to the woman's position in the country o We are all souls that should be equal and society should mirror this reality. • Moving toward the notion of companionship in marriage. • Allowing women to break out of their gender roles, men's experiences will be changed as well. They will have a more well-rounded view of the world and give them more perspectives on the world.

Pres. Jackson vs. Cherokee: removal

• Andrew Jackson decides to finally carry out the 1802 Compact to remove the Indians from Georgia. o Jackson had previously negotiated many treaties with the tribes o Had fought the tribes in the South as a member of the US military o He believed in mixed marriages and had an adopted son who was Indian. o While he privately may have believed that the nations could be mixed, he was clearly publically sure that the tribes could not live with the Americans.

James Wilson, Pennsylvania Ratifying Convention

• Argument against a bill of rights in the Constitution - this is perhaps the strongest case.

Phillis Wheatley, "His Excellency General Washington"

• Arrived in Boston in 1761 on a ship from Senegal. • Susannah and John Wheatley purchased her to serve as a special assistant to the mistress of the house. They taught her to read and about astronomy, the Bible, and geography. • She became a writer. Wrote a letter and poem to George Washington.

The Early Judiciary

• Article III - very vague - one supreme court and as many inferior courts as Congress shall establish • Doesn't mention how many justices on the Supreme Court, or how many inferior courts, or how to establish. • Originally, judges did not write down their opinions - just gave orders. Then, people in the courtroom began to write them down and eventually the judges themselves did. • Not that desirable; Washington had to write to people to convince them to serve • Figured out how to dress; no wigs, robes, no building; didn't take a case the first year • Rejected doing advisory opinions for the President

What does the Granger case suggest about the way in which the Plymouth community was using law to regulate sex and the family? Why might such prosecutions have largely vanished from New England by the late seventeenth century?

• At this time, it was protective and restorative to the community to execute the person. o However, further down the line, it will become more disruptive to the community to execute people for crimes such as bestiality and adultery. • Just like criminal profiling today; animals had to be killed; seen as tainted; better now, but not in time • Concerned bad people come to tempt the pious ones; servants and lower classes had to fill ships • Some people who were not religious joined; English thought the executions proved the barbarity Shift away Eventually, killing people is worse for the community (end of 17th century); always regional Example: need two witnesses for same-sex prosecution for actual penetration Lots of same-sex prosecutions in MA and CT, very few in VA; slavery issues in VA

Background to Witchcraft

• Augustine, the Bible, and the Church always stood against the practice of magic God was too powerful for the devil/magic to take control on earth. Thus, people were not prosecuted for witchcraft because they thought it impossible. • Beginning in the 1200s, the church moved away from this understanding and toward accepting that the devil could come on earth. o Malleus Maleficarum (1486) - Theological background to witchcraft. Gives a set of legal procedures to prosecute witches without yourself participating in the devil's work. • Witchcraft is seen as being predominantly done by women and many women who were accused eventually were executed. o Witchcraft is a crime of words, not physical violence. • By the time Salem occurred, most other places in the world had ended their prosecution of witches. • In America, Salem was not the only place where people were accused of being witches. o 90% of accusations occur in New England

Democratic deference?

• Barnette (1943) and Korematsu • 1941, US enters WW2. Justice Stone becomes Chief Justice. Court begins to reconcile 3 ideas: • What it meant about the ND - democratic deference - Courts are third branch and should defer to legislative majorities; they are lesser branch. • They ought to look out for rights that are related to principles of justice. • Law ought to be addressing the purposes of the nation. Con law in particular, ought to be somehow aligned with that. • The war puts pressure on those ideas. o For believers in American democracy, the question was how was America different from those systems of majority in Italy and Germany?

John Barron v. The Mayor and City Council of Baltimore (1833)

• Barron, a wharf owner, sued Baltimore, under the 5th A's Just Compensation Clause, for loss of property when water levels around his wharf decreased because the city had diverted streams to grade and pave streets. • Baltimore did not agree to pay compensation. • Barron argued that 5A regulated the legislation of the states, for the protection of "the people in each and all of the states regarded as citizens of the Untied States." • Baltimore county court found for Barron in the amount of $4500. Court of appeals reversed. • Barron is granted a permit to build a wharf. • After he builds the wharf, the city altered the flow of the water, causing the water level go down to an unusable level. • Barron sues under the Takings Clause of the 5th Amendment. • Marshall says that the Bill of Rights does not apply to the states, but only to the federal government. o Won't be back in until the 14th Amendment • Only two states at this time had states taking clauses in their constitutions. • Thus, the state legislatures can decide whether people get compensation for their property when taken by eminent domain (or through corporations incorporated for a public purpose) • This case is also about the Bill of Rights not meaning very much in a world where the Federal Government doesn't do very much.

• Meese's Position - Original Intent

o Draws on a few early writings of some law professors, but this is essentially the birth of the original intent argument in its modern form. o Meese differs from the proponents of these positions on the Court today in that he says that the Constitution is not stuck in time in 1789. He says, of course some things must be read over time and read as large principles There are other times where the Constitution is very strict and we have to follow it to the "t" of the words. This was a softer type and understanding of originalism than that espoused by Thomas today. o It also differs in the way that Meese recognizes that there was disagreement between the Framers of the Constitution Today, those proponents of originalism would look to dictionaries and say that words must have meant the same thing to everyone at the time and there must be one meaning. • Later, these factions split into different sub-factions, such as textualists, looking at the ratifiers, looking at the framers, etc. • Like the Federalists, the Originalists have a better name. When the Living Constitutionalists find a better name, they may take the high ground.

• Polygamy

o For Republicans in Congress, the Church of Latter-Day Saints looks something like slavery. Understood as a challenge to the type of WASP establishment in the western territories. o For women, they are an exciting group that could allow for non-conventional notions of marriage and liberalizing of marriage. o The church actively supported divorce and women's voting. o The Morrill Act (1862): federal legislation regulating against polygamy. o The Church refuses to get rid of polygamy and challenges the constitutionality of the act. Reynolds v. U.S.: SCOTUS says that of course the federal government has the ability to control marriage in territories. • Links plural marriage to issues of racism and imperialism. o In 1890, Utah is admitted to the US under the agreement that they eliminate plural marriage.

Incorporation debate (1947)

o Frankfurter and Black begin to develop opposite answers to the question. o Adamson v. CA (1947): selective incorporation.

• Similarities with the Constitution

o Full faith and credit, privileges and immunities, foreign policy power in the federal government - interactions between the states later adopted into the Constitution.

How do the justices in EC Knight see the world? What legal doctrines are important to them?

o HELD: manufacturing is different than commerce; it predates commerce. Thus, Congress does not have the ability to govern under the Commerce Clause They did not strike the Sherman Act down as unconstitutional in its entirety. They just gutted it by severely limiting its applicability and scope. • Sherman Act goes after commerce, and this is manufacturing that only indirectly applies; other side • Doesn't make any sense if you think about it; just part of binary framework • Says federal consolidation cannot be touched by Feds, but the Sherman Act is constitutional

O.W. Holmes, Review of Langdell (1880)

o He says that, while Langdell's work is very good and smart, and the greatest living theologian - not a compliment o Holmes mocks the idea that there is some scientific truth that can line up in a sensible manner. o There is no great truth about or law - law is its effect on real people and not what makes it logical. o The man in the robes matters - it matters what the person deciding the case brings to bear. It matter what those individuals think about o However, it might be useful for the study of the law in school, but not for the true understanding of the law. Here, a partially fake system is better than just a ragbag of details from individual cases. • Law is logic... experience. This quote comes from critique of casebook. He says, this is not really how law is. • When he says Langdell is the greatest living legal theologian, that is not a compliment: says you are searching for something that is not there. law comes up because of human experience, prejudices, biases. Law is not just about logic. • But this might be better than no legal education system at all.

What is Lincoln's depiction of the war in the Gettysburg Address?

o Here, historians believe, that Lincoln has transformed his view of the war into a larger purpose.

What is Bryan's vision of the nation? What is his understanding of law and the Court?

o His main complaints: Redefines "who is America" - In reality it is the small ordinary person that is the average American. The "businessman" is as much the local shopkeeper as the guy on Wall Street. Wants to define America not by its cities, but by its true backbone - the farms and the rural life. Supports the income tax. The Populists see government of this period favoring the wealthy and big business. By adopting the income tax, the wealth would be redistributed somewhat. Paying taxes is patriotic and also a showing that you're making money. • The Supreme Court had struck down the income tax the first time it arose. • Thus, they needed an amendment in order to achieve the income tax. • All about heart of the American people; expands the notion of businessman to everyone • Income tax is redistributionist; notion that people should pay for government • Those who are wealthy enjoy the most benefit, and they should pay for it; against excise tax (sales) • You shall now press down upon the brow of labor, this crown of thorns; Teddy Roosevelt milder flavor o Government is supposed to solve the problems of ordinary people. o Rethinking of the role of government in America

• Five Traditional Powers of the Corporation

o Hold property o Sue and be sued o Common seal (delegation of corporate power in a single person) o Make your own laws o Perpetual succession - achieved through a charter.

Problems with the American Ideal of a rigid constitution:

o How do we know that the boundaries are for good and unchangeable or that they are calibrated correctly from the outset? o Who or what body is going to enforce the boundaries? If the Supreme Court enforces the law, are they really constrained? Is interpreting actually making or executing? Judicial power will be expanded greatly as time goes on in order to enforce the law. During this time, everyone assumes that the judiciary is part of the other branches, but not a branch unto itself. o Why is the constitutional line any more important than regular legislation?

Towards Philadelphia

o Idea of ratification - from Mass! - notion that it is ratified - so automatically higher power than statutes o People's consent - get it fundamental, make it ratified

• Partial Suffrage and the West

o In the west, because of Utah's lead with respect to women voting and because of the homesteaders, women's suffrage begins in those states. o Idaho and little states - 4 states - give women the vote in the 1890s. Not many women in those states. o Elsewhere, women get vote through partial suffrage. Allowed to participate in matters that are seen to affect women. o Widows allowed to vote on school matters. o Begin to allow women to vote on bond matters - women who own property should be allowed to vote on whether their property will be taxed.

• Jan 1776 - Thomas Paine's Common Sense

o Intended to persuade the colonies to break from England.

How does James Otis describe the relationship between government action and fundamental law? Is his argument a "constitutional" argument?

o James Otis says that he will resign because he does not agree that the task of his commission that was to give out the writs of assistance. o Otis's Argument Specific search warrants are OK, for certain properties for certain reasons. General warrants, however, are an impingement of man's liberty. Otis says that the general warrant, although authorized by Parliament, is limited by the constitution. The legislative body has limits.

What purposes lie behind the Cherokee decision to write the Constitution?

o Jon Ross thought that if the Cherokee formed themselves into a nation, they would be protected from encroachment in many ways.

Haunted by Lochner: admonitions to forbearance and legal process

o Learned Hand suggests that everyone in the law believed that Lochner was decided wrongly. The Court was protecting the right to property through the 14th Amendment. Judicial Activism anxiety: • No one wants to be like the Lochner Court Therefore, the Court just doesn't uphold rights at all in order to avoid being like the Lochner Court. • Instead, the Court worries about the processes, but not about individually chosen rights to enforce. o In Law School, people were taught the cases, but without the background stories See Powell v. Alabama

• What is different about the Articles of Confederation from the Constitution?

o Little mention of the Executive branch o The word President is used, but it is essentially a congress member that has been elected. o Focused on property - taxing based on land ownership o No coercive power over money, however. It will ask for money and the states shall pay. o Ratification by 9 states o Unanimity in order to change

Slaughter-House Cases (1873)

o Louisiana had passed a law granting a monopoly to one company to slaughter for the next decade. o People who felt offended by this law, prevented from participating in that business, sued the state. o Miller Opinion: The 14th Amendment was primarily about ending slavery and the post-bellum incidents of slavery. Although the 13-15th amendments may apply to some other people, it does not apply to this specific group of people. Also did not alter the states' relationship to the federal government. Privileges & Immunities Clause: The rights protected by this clause are only those few in the original Constitution, and not in the Bill of Rights. o Dissents - going to become the majority opinion pretty soon Field: The beginning of the new Republican Party - about economic liberty and not political liberty. • For business reasons, the 14th Amendment ought to be protecting the people suing here. • Liberty = Economic Liberty Bradley: Again, need to turn away from race relations to the economics that are important in the day.

Witchcraft Explanations - Political

o Many historians recently have blamed this phenomena on the community's experience with violence and tumult

How do the Justices in Slaughterhouse understand the Civil War, the Reconstruction Amendments, and the issue of race?

o Miller Opinion: The 14th Amendment was primarily about ending slavery and the post-bellum incidents of slavery. Although the 13-15th amendments may apply to some other people, it does not apply to this specific group of people. Also did not alter the states' relationship to the federal government. • Stands for a Court walking back from the 13th and 14th amendment • The 13th amendment was specially targeted toward ending the slavery • Not the same reading as the 1866 Civil Rights Act • This case begins the process of making the 13th A very small • The 14th Amendment ensures citizenship rights granted by the federal government, NOT the states • The rights granted by the 14th amendment were pithy; traveling on the high seas, traveling to Washington DC, habeas corpus • Majority believes that this interpretation of the amendment is correct because the Civil War was not about changing the relationships within the states ® but many people do not agree that this is true

West Coast Hotel Co. v. Parrish (1937)

o Minimum wage limitation is OK, overturning Adkins. o The Court also upholds other New Deal programs.

Abortion in 19th century

o Most states don't regulate abortion at all o Common Law quickening doctrine Quickening (child present in a way that can be felt) occurs at about the 4th or 5th month Until quickening, there could be no crime for abortion. Bangs case: woman was not quick with child, so the person who poisoned the mother and beat her up - causing the child to be lost - had committed no crime. o If not quickening, only allowable with the consent of the doctor. • Slowly regulated; very controversial; not a felony before quicken (feel the child move); 4 months • Regulation of abortifations: abortion through poison; pre-marital or rape; nothing if pre-quickening • NY: pre-civil war; legalizes termination of pregnancy for the life of the mother

Case One: Corn Tassel

o Murdered another Cherokee member on Cherokee land. o Georgia imprisons him and sentences himself to death. o The Georgia courts say that, because the Cherokee are uncivilized, they have no capacity to try their own people, so Georgia must do it. o Georgia executes Corn Tassel and makes the issue moot at the Court.

Brown, the Warren Court, and the Legal Academy

o NAACP decides it needs precedent to overrule Plessy. o Sweatt: Law school case. The Court is willing to take these baby steps. When they have taken enough steps, they can overturn Plessy. o Vinson dies and Earl Warren is appointed to the Court. o By the time he becomes Chief, Warren deeply regrets his role in removing Japanese Americans. o Frankfurter also is persuaded to go the other way than he had on previous cases. o HLED: 9-0 Opinion overruling Plessy o In some areas, Brown works quickly and effectively. In others it takes a very long time. o People in the legal academy wondered what had happened to Frankfurter (who had always talked about deference and review for process) They said that you couldn't be for Lochner and for Brown In some ways Brown is the quiet version of Murphy's Oyama - looking at history and the reality of the situation, not just process and deference. o BROWN IS ABOUT PERSONAL DIGNITY - NOT ALL RIGHTS - BUT PERSONAL DIGNITY

• The 19th Amendment Organizations

o National organizations join under the National American Women Suffrage Association Doesn't accept colored women's suffrage however, because they think it would harm the effort.

I.G. Blanchard/Jesse Jones, "Eight Hours" (1866, 1878)

o Nature was made by God in order that people can enjoy them o Thus, they should have 8 hours at work, 8 hours at sleep, and 8 hours to do what they want.

Plessy v. Ferguson (1896)

o Nothing wrong with segregation o Reading the Harlan dissent carefully: what is strange about segregation is that Chinese people can ride in the white cars. o argued as a caste case, segregation is about legalized caste based on race and color o Harlan dissents again, passionately. But he also betrays his belief about the Chines residents of the US, that they are not citizens at all, they don't even belong.

• Brennan's Position - Living Constitution

o On the bench at the time he wrote this piece. o Interpretation of the community is what is sought after. o The true duty is to discern what the words mean in our time because the Constitution is just a framework. This is the way the Constitution has been interpreted over time. This is the exact reason why there is a Court to begin with. o These days, "living constitutionalism" has received a negative connotation. o Brennan is a child of the New Deal Era in which the Constitution was intended to be impressed by change.

Adolf A. Berle & Gardiner C. Means, "The Modern Corporation and Private Property" (1932)

o Ownership of the new corporation is separated from control. o This is a large problem because when ownership is linked to management, corporations remain small, and limited to the individuals' capital and ideas about what the corporation should do. o They predict that the corporation will go on to be more powerful than people of that generation could even fathom. This becomes true because corporations eventually go global.

• 1770 - Boston Massacre

o Paul Revere makes the engraving that makes it seem like the Brits were completely in the wrong.

National expansion

o Population was doubling in the U.S. every 25 years - almost all due to immigration. o This created a very young population - most under 30. o 1803 - Louisiana Purchase expands territory out to the Rockies. Very quickly, people move into these areas. TX is a state in 1845 and CA in 1850. Continental boundaries come into being. o Now, we need more money and more fluidity - more banks o More transportation out to the west. Canals • Erie 1825 Railroads • NYC to Mississippi by train in the 1850s. o This changes how people obtain wealth. o The rise of the producer class: People who make money by making goods rather than by owning land and renting it out. Tips toward a manufacturing society before the Civil War. o Shift toward a cash society Increasing number of women, blacks, and poor whites get a little bit of money by participating in the manufacturing economy. o This all uproots the prior understanding of politics and the economy - No longer is the lowly yeoman, Jeffersonian farmer the ideal and the average. o The rise of the corporation that is involved in these large economic endeavors - Property held in the form of shares. This happens incredibly fast. In the early 1800s, only towns really were incorporated. By 1817, Mass has more corporations than all of Europe By 1830, Mass has almost 2000 corporations. • All of this change shifts our Constitutional thought and suffrage.

George Fitzhugh, "The Blessings of Slavery" (1857)

• Became one of the most prolific Southern defenders of slavery in the 1850s. • Believed the proslavery argument must not only justify the southern system, but should actively condemn the arrangements of free labor in the North and elsewhere. o Romanticizing of the slave's existence: The slave has it pretty well. They get to rest under the tree on a sunny day and get free lodging, etc. Compared with northern capitalism, which is like a worse form of slavery. This obviously misses a crucial distinction: actually held as property. o The relationship between the master and the slave is of the caring father - paternalistic. This is your family. The person who's master is actually the father figure who takes care of everyone Fitzhugh is wildly popular in the South. Defending the south by condemning northern market capitalism.

Status of African and African-Americans before 1660?

• Before 1660 - BLACK DOES NOT EQUATE TO SLAVE. • Elizabeth Key and Fernando cases • IN THE EARLY DAYS, SLAVE VS. NOT SLAVE WAS NOT SO CLEAR, THE LINES WERE BLURRED, AND COULD BE CHANGED. • LAWS, AFTER 1660, BEGIN TO CHANGE TO FURTHER RESTRICT THE ABILITY TO CHANGE ONE'S STATUS.

New York Married Women's Property Acts

• Beginning in 1848, NY passed a series of statutes altering the property rights of married women.

Failure of the 14th Amendment Argument as to Women

• Beginning in the 1860s, women petition Congress to give them, explicitly, the right to vote. o This failed miserably. o The Supreme Court does not extend the 14th Amendment to cover women. • Massachusetts is very late to grant suffrage • No right to vote under privileges and immunities clause of the 14th; no help from Congress

Coverture and Politics

• Beginning of 19c through Married Womens Property Act, women are still in coverture. Drives some women completely crazy. They cannot vote, do not have legal rights. • The Law of Infancy and Coverture • Legal ideas about family/women are the same as when we read Blackstone. Women begin the period in that place.

John Greenleaf Whittier, "Maud Miller" (1867)

• Judge is riding down the road, sees Maud and they are smitten with each other. • The Judge enters the scene on his horse and never gets off his horse. o Wealthy (owns a horse) o Symbolically higher than every one else, especially Maud who is barefoot. o Like the lawyer in Bartleby. • Maud is a local farmer, raking hay when we meet her. She is poor, works on a farm. o She is beautiful, however. o Brown ankles. Long-lashed hazel eyes. coded to the people at the time as a slave. • Potential symbolism with the judge: o Desire to move beyond racial boundaries, but the social incapacity to do so. o Anxiety about the power of society and the social assumptions preventing people from doing what they feel like doing. He is worried about his mother and sisters views of his doing that. o Image of law: The judge doesn't seem fulfilled with his position as a judge—seems kind of fed up with it. The judge doesn't really give much thought to how he doles out justice. o Judge has relative power and monetary wealth as compared to the average judge today o Judge and Maud are almost enslaved by their position in the caste system.

Divorce in 19th century

• Judicial sphere • The tender years doctrine • The family can also choose when to end itself. • The judiciary will ask, under a contract theory, whether one party has breached the contract of marriage. • Matter of judiciary; previously, had to be for the legislature with a cause; makes it private • Expanded options, like cruelty and violence now; but problem about custody of children • Barron and Femme, women keeps; here, tender years doctrine: if young, go to mother

"A Conference or Dialogue between the Author and Adario, a Noted Man Among the Savages"

• Lahontan • Suggested that Lahontan utilized the Huron as the imaginary other side of a dialogue so as to comment on the state of France at the time. • Lahontan tells Adario that a system of rewards for good behavior and punishment for poor behavior was necessary to prevent the deterioration of the white man's society.

The Reports of Sir Edward Coke, Knt., in Verse (1826)

• Lawyer poet • The name of each case and the principal points are contained in two lines.

Early colonial legal culture

• Legal literacy • No established bar. • The people who are lawyers are people who are legally literate; have enough money to have collection of books and learn the laws. • Margaret Brent • Women could never be appointed attorney in fact, because then they might start thinking they should have political power.

Emancipation; Liberty of Contract for women(?)

• Legislatures began to pass statutes allowing women control over their own earnings. o Justification: Otherwise a married woman is like a slave and we are done with slavery. o Courts, however, immediately cut back. Unless the woman keeps her money separate, it shows an intention to give it over to the family, and thus the male.

Witchcraft Explanations - Socio-Economic

• Less affluent people accusing the more affluent. o Works for some, not for others • Dominant theory - the people who initially accused people were less affluent, not connected to the growing commercialization

Andrew Johnson, Congress, and the 14th Amendment

• Lincoln's death matters a great deal here. o He thought that many people in the states should not have to declare an oath to the US all he really wanted was to reify the union. o In Congress, however, people wanted more than 50% of people to take that oath. • When Lincoln dies, Johnson becomes President. o Johnson was a former slave owner and a vehement racist. o He believed that middle class white southerners had been dragged into the civil war by larger plantation owners. o He saw himself in the ilk of people who had never owned slaves and never benefitted directly from the institution. o He had no interest in seeing the Civil War as altering fundamentally the relations of the races in the US • Johnson immediately restores property to former Confederates. Sends the signal that there is not going to be a seismic shift in the culture of the South.

The 13th Amendment and ending slavery (1863-1865)

• Lincoln's two ideas about ending the war: Restore the union and abolish slavery. • Ending slavery is the true purpose of fighting the war. • Not just gradual emancipation, in certain counties and states. • Frederick Douglass and others were worried that the end of the war would just be the reinstating of slavery without an amendment abolishing slavery entirely. o Hundreds of thousands of people sign in support of the amendment • Opponents of the amendment argued that it would be unconstitutional to adopt such an amendment because it was a state issue that could not be touched in such a way.

William Manning, "On Lawyers" (1798)

• Lived his life as a farmer in MA; significantly involved in local and national politics. • Essay remained out of print throughout his lifetime, although he repeatedly revised it.

What problem does Madison perceive with the Articles?

• Madison complains: the states are not abiding by the constitutions. They have too many laws and bicker amongst themselves and do things wrong. • Long rant about the states. • The Art of Confederation have made the states too powerful in the national government. • He goes to the Convention with other people who agree, and they try to rebalance the notion of federalism. • If we think of Art of Conf as our first constitution, and the 1787 constitution as the second one, there is a different story of federalism. • No protection for the minority • States conflict with each other • Nothing binding the states together • No coercive power • Cong disrespected

James Madison, Commonplace

• Madison studied law, read books and reports. • Madison's notes were a law commonplace: a method of taking notes in which one arranged cases under an alphabetical group of common law headings. • The heads provided both a guide to the substance of the common law and a method of sorting and recalling common law cases, doctrines, exceptions, and relevant statutes.

Women and legal education

• Many law schools will open their doors to co-education • The elite Northeastern law schools, however, did not readily open their doors to women. • Jordan gets into Yale, and gets through without the help of the administration o Yale then changed its catalogue to prevent women being admitted. • Women do begin going to law schools • 1915: 70-something schools of 120-something schools admit women. • By 1920 - 122 of 129 admit women, but not Yale and Harvard. o BC founded in 1929 - first woman in 1941.

Independence for whom?

• Many of the complaints in the Declaration are legal complaints. • Jefferson originally wrote a slavery provision into the Declaration - very twisted and tied up idea. o Jefferson obviously understands that slavery goes against everything that they're writing, sort of like Abigail Adams. • Phyllis Wheatley died a poor kitchen maid, for instance. There was no room for a freed black woman in this society. • Thomas Hutchinson was crazed by the idea. He asks how rights can be unalienable while at the same time alienating these rights from hundreds of thousands of slaves. • Begins a series of conversation. • Abigail Adams: Remember the ladies. • What is the notion of arbitrary power as applied to women? • John Hancock, Benjamin Franklin, Thomas Hutchinson • Hutchinson: how can we talk about liberty, etc, and not give it to Africans?

Property and contract dimensions bounded by time and legal rights

• Many people signed an indenture that limited the time. • Increasingly, people just get on the boat, or are put on the boat, and on the other end they are sold. • Out of some places like Germany, they are sold because they cannot pay for passage. • Colonies start to create a time limit based on age. Start indenturing people based on guessing their age.

Witch Accusations in New England

• Many were reaccused at Salem; against the backdrop of earlier trials. • 344 people were accused in Salem; 35 executed; 1 person pressed to death. Enormous outburst of accusations. Higher number of people dying. • Salem Village is not Danvers - not actually Salem.

The Federalist Papers

• Most famous essays of the proponents of the Constitution. • Alexander Hamilton had the initial plan. • Hamilton realizes there will be a large problem to ratify in NY decides to write the Federalist Papers to try to persuade people. Jay, Hamilton, eventually Madison are authors. o Madison writes most of the ones about the legislature (starts writing around Federalist 10). o Can be hard to sort Hamilton and Madison out because they worked together on a lot of the early ones. o They each left differing lists as to who authored which ones.

Salem witch trials

• New England colonies had statutes declaring death to be the penalty for witchcract. • Statutes cited Exodus, Leviticus, and Deuteronomy for authority. • Trials took place in Danvers in 1691-92. • First arrests occurred in February 1692: Sarah Good, Sarah Osborne, and Tituba. • Additional arrests made that spring. • Bridget Bishop, the first to be tried, was executed on June 10 by hanging. • In October, Governor William Phips had the trials suspended. • In Jan 1693, additional people were sentenced but no further executions were conducted.

New court: Rehnquist becomes CJ - new Era

• New jurisprudence. Themes we have seen go in interesting direction. • Theme of rights and dignity keeps going through this era: • Cruzan: • ADA is passed in this moment; passed under Bush 1. • Romer: • Many cases not in the reading that involve property. Rise of Takings. • Lopez: • Federalism comes to mean state rights. Around the court conservatives comes an emphasis on federalism, 11A, 10A, all sorts of issues involving state rights. • Also begins to be center of sense for many conservatives that they were always one vote short. • Gary Lawson's poem:

Granting Federal Citizenship: Destroying the Tribes

• Notions of citizenship are expanded to tribe members as a way to destroy tribal sovereignty • "ethnocentricity of frightening intensity" • Dawes Act: took all of the tribal land and allotted it to individuals, said the tribe could hold no land collectively • In 1890 federal troops were sent in to take down the Sioux • Many disastrous and bloody battles

1840s: corporation begins to slowly shift

• Number of corporations rises. • 1837, CT is first state to pass general incorporation statute - no longer have to go to state and bargain for it. • Shift toward general incorporation statutes because the whole thing had become corrupt. Ended up giving legislatures [kickbacks] to get incorporated. • Trend towards limited liability - individuals cannot be held responsible for decisions. Good idea but problematic. • Louisville CCR RR v. Lofson (1844): corporation is a citizen for diversity purposes. • Starts the road to Citizens United. • If you are a corporation, you want to sue and be sued in federal court. Because otherwise, the state courts might unfairly regulate these corporations. They want to get out from under that , and they get it in this case. • Courts agree that because corps travel outside of one state, and have shareholders from different states, it will be considered a ctiizen for diversity purposes. • Legal commentaries in 19th century - on the one hand, corporations hold potential for small people to begin to make money - people who could never run a turnpike by themselves. On the otherhand, fear of enormous political power that is unregulated by state. 1844 Case: For the purposes of diversity jurisdiction, the corporation is an artificial person and thus you need only prove diversity with the corporation and not with the individuals in the corporation. General Incorporation: Post-1830s, new states have general incorporation laws in order to prevent the corruption that could come with special incorporation from the legislature. Limited Liability also develops during this time. General incorporation statues: if you fall into a broad purpose, you can incorporate Limited liability for individuals; considered a citizen for diversity purposes (fed court); over time (1840s) The shift to federal courts makes it more likely for the laws to help corporations rather than the state

Problems with the Record

• Official record: taken by William Jackson, Secretary. • In official record, there is no discussion of everything. This is long before the Congressional Record. Just showed motions and outcome. • Secretary kept track of votes as tally marks. Not clear what the tallies represent. • Madison's notes have become important. • Other people took notes too: Pierce, Yates, Lansing, etc. • Madison was not sure if he should publish his notes. • Madison died on June 28, 1836, at 85 years old. • People wanted him to die on 7/4 like Adams and Jefferson, but he refused to take meds to stay alive. • His wife Dolley Madison controlled his papers. • The Framers and us? • The notes and records are very long. And that is everything we have about the Convention - the narrative created by Madison's notes. Since 1840, it has been the major storyline - even if it is not accurate - when SCOTUS cites the Convention, this is what they are citing. And he was using a quill pen and also trying to participate. Sometimes notes written after the fact and reflected his own understandings. We read them as if they are the Congressional Record, and that is not accurate. Now SCOTUS will figure out what they want from Madison's notes, then cite to the Official Record.

The Judiciary Act (1789)

• Oliver Ellsworth drafted "An Act to establish the Judicial Courts of the United States." • Approved on 9/24/1789. o 6 Supreme Court justices This would mean a steadier, less progressive court Greater legitimacy perhaps Each appointment to the Court would be less political and less influential

Legal Realists

• Oliver Wendell Holmes, Benjamin Cardozo, Karl Llewellyn • People decide cases, not the law only for the sake of being the law o The Realists say that people's personal backgrounds - their consciousness and subconsciousness - will always come out in the way they decide cases. • Law is not there to be discovered, but law should solve and should reflect practical problems o They began to push against the liberty of contract theory in the abstract o Freedom of contract is about relationships between real people. We should pay attention to the realities of their bargaining power. • Origin of Movements o Critical Legal Studies - It really matters who people are and law has deep biases built into it. o Law and Economics - You ought to use social science research in order to understand the law. o Modern Constitutional Law - matters who is wearing the robe and what will sway their votes in particular cases.

Coverture

• Once married, a woman's legal existence disappeared. Her legal identity became subsumed by that of her husband.

Lucy Terry Prince (1724-1821)

• One historian records her as the "first woman ever to have addressed the Supreme Court."

Secretary of War Eaton on the Cherokee Removal (1829)

• One of the best statements of President Anrew Jackson's position - on the policy he supported, of removing the eastern Indians to areas west of the Mississippi. • Written to the Cherokee delegation. • Letter to the Cherokee based in Jackson's view • Cherokee was on the losing side of the Revolution, so they don't have rights to the land that is claimed by the states, the conquerors. • Thought that it would be against the federalist view of the US government to infringe by arms on the rights of Georgia to control their own territory - if they want you out, you must go. • Thinks that the Indian myth of hunter/gatherer ways will not work in American society (even though they were stabilized, industrializing) • Says that this move will be good for the Indians because they can be protected by the US government from the inevitable clash with the White Americans • Paternalistic, Protectionist, Ward-Guardian situation

who was Susannah Martin?

• One of the first women to face charges of witchcraft. • Accusations of Abigail Williams, Ann Putnam, Betty Hubbard, and other daughters of prominent members of society. • Convicted on June 29. Hanged along with Rebecca Nurse, Sarah Good, Sarah Wilds, and Elizabeth How. • Born in England; migrated to New England with family. Married widower George Martin and had 9 children. • Irregularities with father's will; Susannah did not dispute it. Later sued / complications from it. • In 1669, had been accused of being a witch and wringing the neck of a child before she was married. Her husband sued the apparent alleger for slander. No disposition has been found.

Robert Cushman,

• One of the leaders behind the Pilgrims' voyage to America. • Joined the Pilgrim movement in Leyden, Holland, in 1609. • After 8 years of living in Holland, he and John Carver set off for England to seek permission for the Pilgrims to go to America. • Helped orchestrate the funding from English merchants. • After the Pilgrims accepted the merchants' proposals in 1620, a group set off for the New World aboard the Mayflower. • Never emigrated, but took one trip with his family; returned to England in 1622.

Senator Frelinghuysen on Indian Removal (1830)

• One of the strongest supporters of the Indian opposition to removal. Speech given during debate on the removal bill. • In the debate over the Indian Removal Act, many people spoke vehemently against removal. • In the beginning, the tribes were there and they thus have rights to the land. • They never indicated in anyway that they had lost the rights to their land. They sold some, gave some away during treaties, but they were never conquered and never relinquished their ownership. • They are a nation with an established government. They should be treated as a nation under the Constitution and not as a random group of people. • 16:15 - "Do the obligations of justice change with the color of the skin?"

Cincinnati Law School (1853)

• One year model • Geared toward people practicing law, not just teaching lofty ideas and general knowledge for all. • Bar privilege - graduating = bar admittance o Still recognized by Wisconsin. • Cheaper as well.

The decline of indentured servitude and shift toward racial slavery

• Opportunities to run away • White people refuse to submit themselves to servitude where based on race • JUST MOVE TOWARD DEFINING PEOPLE BY RACE AND ELIMINATE THE GRAY AREA IN THE MIDDLE. • By the end of the 18th century, white people become abhorrent of indentured servitude because they equate it to "white slavery" • Bound labor for time, not for life; start getting legal rights; can run away to cities easily • Want differentiation; slavery and apprentices are totally different; w Revolution, it goes away • It is huge and then declines, for variety of reasons. • In increasingly settled area, with lots of white people, becomes easy for white people to run away. As cities become larger, can blend in. • Advertisements for indentured servants: first describe their clothing, then describe your unique facial features. • But many people can fit the description. Unless you were extremely unique looking, you could escape. • From an economic point of view, as colonies became more settled, it became economically a bad investment. • Slavery becomes more affordable. English people can now afford to buy enslaved people. • Opportunities for poor people in England begin to increase; better opportunities at home, and worse opportunities in colonies. • Royal African Company • African enslavement, lifetime service, becomes dominant.

Arguments on the Writs of Assistance

• Otis sought to protect individuals' privacy against intrusion by the writs' holders, who were given permission to enter houses to search for contraband without seeking permission from a court, so long as they had an officer or constable present. • Since the writs were valid only 6 months after the death of the issuing monarch, the passing of George II in October 1760 sparked a fight to secure new permissions. • Otis' arguments are recognized as speaking out against parliamentary sovereignty.

What was important about the Marbury case to Justice Marshall?

• Over and over in opinion, Marshall emphasizes that he understands the politics, and there are moments where the court cannot touch the president - but there is a whole part of the system that is not part of the politics, and the court will make sure those operate.

Declaration of Sentiments, Seneca Falls (1848)

• Paraphrased the Declaration of Independence; proclaimed that "men and women are created equal" • Written by Elizabeth Cady Stanton. • Provisions: o Direct political participation - this proves to be controversial o Access to jobs o The right to be educated o The right to hold property o The right to be protected in the home from physical abuse. • First time a document thinks about what if women had a different role; look like the Declaration • They get men to run the meeting since they don't know how; very radical, but they needed help • Want to be equal, right to vote (not unanimous), access to jobs, property, education, free from abuse

11th Amendment (1795)

• Passed in direct response to Chisolm v. Georgia. • 11th: grants sovereign immunity to the States; flips the holding of Chisholm

What is similar / different about Cabot's letter patent and Treaty of Tordesillas? What explains the difference?

• Patent of John Cabot Very influential in what will become the way the American Colony gets settled. Henry, King of England, gives to John Cabot the right to do whatever he wants to any non-Christian lands. He gets to land, seek out, discover, find, all lands unknown to Christians - same theory as the Span/Port. But then there is another part that is different. John can subdue, occupy, and possess all such towns, cities, castles, isles. He has the right to conquer, basically. He has to give them 1/5 of the net profit. Real meaningful legal documents.

Regionalism and Law - Virginia Family Model

• Patriarchal Family Model o Fathers politically and legally represent women. o Patriarchal in a hierarchical way, following the royal colony of Virginia and the proprietorship in the Carolinas as well as the Anglican Church. o Examples: • Marriage is religious in these communities • Divorce is unacceptable • No one worries a lot about fornication and they don't go after people for paternity, there is no community sense of responsibility for the child. • The family exists outside of the nuclear family. Family is comprised of nuclear family, cousins, servants, slaves. The father has authority over a lot more people than he would have in the New England communities. o Women tend to marry young o Many more single people, because you can be part of a family without necessarily being married to someone. o Cousins marry o Primogeniture o Fathers represent women and children; men are the political authority that represents them o Replicates overarching political authorities: Governor, religious authority; divorce unacceptable o No worry about fornication; family outside of nuclear family; more single people; church did marriage o Little concern about child support; high death rate, all about extended family o Patriarchy: father is political representative of household. o Description of a certain type of political legal structure. o More comfortable with hierarchy: o Religious - Anglican church is hierarchical. o Demographics: Men outnumber women and tend to be older than their wives. o Higher death rate in Virginia. Many people live in extended family groups underneath one father. Often include distant relatives, young children who lost parents. All plays into distinct type of family. o Marriage is religious. Supposed to be married in the church; divorce is not tolerated. o Significant acceptance of fornication by men. Not worried about that. o Almost no cases about same sex relations. o Follow primogeniture: the eldest male son inherits the land. We know this from Downton Abbey. Eldest son gets everything. Youngest sons will go into the military or become professionals / lawyers.

State Regulation of Marriage

• People had thought that marriage should be outside of the purview of the government.

Edith Wharton, The Age of Innocence (1920)

• People see divorce as way for women to get out of abuse relationships. Others think it will leave women in poverty. Edith Wharton: if you left your husband, would you have any means of support, with society what it is.

Where do rights come from?

• People were sorting out where are rights from, and what rights do you have. • People knew they had some rights - sense that you had old rights involving criminal process, habeus corpus - things that came from British experience. Trial by jury, etc. • Enumeration - do you have to write all the rights down, or do you lose them? • Where do you place them? In the front, because they are important? At the end, because they are important? Interweave them with the powers? • Are they enforceable or declaratory? o Can you go to court to get them enforced? o Or are they political statements that people believe in, but cannot be enforced? • Do you give govt certain power, and everything else is retained by the people? • Many things we think of as rights are nowhere in the early constitutions. • Many rights are phrased not in language that will become dominant. o Written in present tense now: "is" o Most early rights are written as "ought"; as in SHOULD be, not actually ARE. • Can a constitution do things like end slavery? o MA and CT interpret their constitutions as ending slavery. o Everywhere else, people will interpret their constitutions not to make that sort of law.

Rise of suffrage based on "internal capacity"

• People who own property just in stocks, cash want to be able to vote. White men. • Andrew Jackson will completely alter voting by running on a popular vote - argued that men should be able to vote who did not necessarily qualify for property in terms of land, but who paid taxes. • We see the collapse quickly of property qualifications. • Collapse of any requirement that you vote based on property. • With that - not everybody gets to vote. We get the rise of explicit disenfranchisement, made on some arguments of internal capacity. • Some people may have the money to pay taxes, but not the capacity to vote: • Felons, paupers, women, and by race. • "White" enters the vocabulary. • By mid 19th c, the only places African Amer can vote are in the 5 New England states. The rest are free, but barred from voting. • Voting expands to many more white men, but contracts.

Wendell Phillips, Review of Lysander Spooner's Article on the Unconstitutionality of Slavery (1851)

• Phillips: worked closely with abolitionist William Lloyd Garrison, giving speeches and writing pamphlets and editorials for the antislavery clause. • After Emancipation Proclamation, he supported full civil liberties for the freedmen. • Continued to support reform efforts, including temperance, women's rights, universal suffrage. The Constitution is pro-slavery If you, as a judge, are asked to uphold such an immoral document and resign your position The North should stop acquiescing to the South The practical liability in this is that the Southerners could take control of the government.

Charles Knowlton, Fruits of Philosophy (1832)

• Physician whose popular book on birth control initiated the widespread use of contraceptives. • Book was one of the first birth-control guides in England and America. Began as pamphlet for young married women. • Discussed the problems of excessive population which would lead to starvation, and the health and welfare of mothers who were forced to daily drudgery or ill health because of too many children. • Believed people should have to knowledge to enable them to limit number of offspring.

Pilgrims, Separatists, Puritan

• Pilgrims: a group of English Separatists sprung out of the Puritan movement. • Puritans: a form of Protestantism whose followers sought to reform the Church of England. Supporting the passing of a law under Queen Elizabeth I that punished anyone guilty of writing or speaking against the bishops or the crown. • Separatists: asserted that a total break from the religious establishment was necessary. Denounced the Church of England in its entirely; recognized the need to move to another location so as to avoid persecution.

American cultural memory

• Poem of Hiawatha • Becomes romantic

Development of doctrine of "discovery"

• Pope Innocent IV (1243-1254) The Pope used to run the western world. Pope now is a tiny remnant of the power he used to have. The Pope had the power to excommunicate people, which means you are going to hell. Pope has great riches, also. Excommunication was very scary for people in power. So the Pope had real power. Papacy developed a theory that the world is a Christian commonwealth, and the Pope's job is to bring everybody into that Commonwealth. Conversion is a legal justifying idea. So when countries sail off and hit the West Indies and other places, they have to figure out how to divide the world up.

• Madison Notes

• Two volumes of notes - pages and pages. • Sometimes hard to know whether they were discussing large political ideals or small, specific provisions of the constitution's draft proposal. • Almost all original intent materials come from these notes. • People in these notes have completely different points of view - especially where the person's position lost. • Who else held the idea that finally won, did it win because of the idea or because of some other reason? • These are probably a more robust version of very rough notes, because he couldn't have written that fast in real time • Worried about bias in these notes. May not have bothered to write down some things that he finds boring. Also hard to take notes about what you, yourself are saying. • Not necessarily true that he, himself, said all of this at the time of the convention. • He had told Jefferson that he would take notes of the proceedings, so we might think that he was trying to impress Jefferson in his notes. • In the end, the evidence we have here is someone's notes, and that is all. The official record does not include these background discussions.

Kentucky & Virginia Resolutions (1798-99)

• Under the threat of war with France, Congress in 1798 passed the Alien and Sedition Acts, to strengthen the Federal Government. • Many Americans questioned the constitutionality of these laws. • In response, KT and VA passed these resolutions. o When Adams becomes president, Congress passes the Alien and Sedition Acts o Other states do not join KY and VA • In response, Jefferson and Madison went to VA and Kentucky, and they drafted VA and KY Resolutions. • Resolutions show that somewhere out there, there was some group of people who thought that the SCOTUS ought not to be the only game in town. • Resolutions are very long; Jefferson picking his way through the Constitution, finding all the parts that are unconstitutional.

Corporations in US

• United States o Fell in love with the corporation o States began as corporations o Towns were incorporated. o Corporation is particularly well suited for the Democratic Republic - many small people can get together to do large things.

Case of Howard - 1629

• Unwed servant woman had a child in the house of her master • She has a child that is, apparently born dead, but that is not completely certain. What can we get out of the case record? • She is in a vulnerable position to begin with. Being unmarried, she cannot have a child. • The master threatened to beat her if she did not tell him the truth about her being pregnant. • The midwife arrives only after the child is born • Question of whether the child was still-born or whether there was infanticide • Howard was a servant, likely indentured; no privacy; denied being pregnant; couldn't as servant • Threatened to beat her, she admitted it; more vulnerable being alone; outcome unknown • Midwife arrived after the child is born; community concerned with infanticide

Spaight was at the Convention - what was his idea about judicial review?

• Was from NC; served in Congress between 1783-85. • Represented NC at the Convention.

The southern paternalist defense of slavery

• Previously, no one said slavery was a good thing; it was just historical and biblical before • This notion harkens back to Jefferson, who first defended slavery, even while saying that the system is unjust and will end badly. • George Fitzhugh - The Blessings of Slavery Britain abolishes in 1830s; total romanticizing of the slave's existence; capitalism has no support system Also generally against the northern city oriented economic system; obviously misses the property aspect Master and slave is paternalistic and caring father; master father/family figure that takes care of people • North is actually anti-black people; they don't want slaves or black people; true in Illinois • Whole body of literature romanticizes the South, better value system - the North is thought of as individualisic, not caring about people. South is kind, protective, paternalistic; slavery is deeply embedded in that. • Most of the people who will fight on the side of the Confederacy do not personally own slaves or have an economic interest in it. They fight to defend a regional image linked to slavery.

Philip Vickers Fithian, Journals and Letters (1773-74)

• Princeton-educated man who had studied theology from 1772-73. • Wrote journal entries while tutoring at house of Robert Carter. Carters were one of the most influential families of their day.

The Family - Sex in 19th century

• Private, individual domestic sphere • Limits on marriage begin to go away o Certain family members o Age limits o Common law marriage • Inside the marriage is a private sphere and women have a huge role in that arena. o Women begin to test the idea that there is no such thing as marital rape. • Contraception o Begins to become more widely used

Practical Difficulties:

• Problem of the Atlantic o Too far away; too much time lag for the King to have any real authority. o Physical and Temporal difference o The more space there is between the agent and the principle, the more space there is for interpretation. o The King can say all that he wants, but by the time someone has sailed back to tell the king that the settlors aren't following his direction, a lot can go on. • Charters/patents indistinguishable • Hard for settlements to survive • Had to be written; hence American obsession with pieces of paper dictating rights; right to govern selves.

Experimentation with Governance - Carolina

• Proprietary with assembly (1663) Maryland/Carolina - Quasi-Feudalism o Proprietary Governments o Group of people are given authority by the King, not established as a corporation. •

What purposes underlie the early 19th century corporations?

• Public Purpose: Over time "public" will drop out and now we can just incorporate for any lawful purpose. o Towns o Banks o Turnpikes o Canals o Manufacturing companies o Societies, licensing organizations

Experimentation with Governance - Carolina: proprietary with assembly (1663)

• Quasi-feudal tradition: the king gives to one person, a proprietor, the grant to land. • Fundamental Constitutions, drafted in large part by John Locke • Set up a system with Lords and Proprietors. • They create some serfs.

Writs of Assistance

• Referred to permission granted to a party in the Court of Exchequer or in Chancery to have a sheriff's help in taking possession of property or a debt owed to him. • General warrants were transferable to whomever the original holder deemed worthy. • The practice of providing these general warrants was based on a number of statutes originating in Parliament and spanning one hundred years. Such as 1660 Act of Parliament.

Harriet A. Jacobs, "Incidents in the Life of a Slave Girl, Ch. 40" (1861)

• Reform, relief worker, and antislavery activist. • There is no free state in the US anymore after the Fugitive Slave Law, because they can be captured at any time. • The only free place, truly, is Canada.

The Fugitive Slave Law (1850)

• Repealed 1864. • Designed as a compromise, but how could this be after reading it? • Allows an owner to, himself or through his agent, go get his escaped slave in a free state. • Alleged slave has no right to a jury trial, no right to testify. • The officers of the sate and "all good citizens" are required to help reign in this fugitive. Everyone must help • If you shelter someone in their escape or help them in any way - imprisonment and fines. • Fee structure: judge gets 10 dollars if he says the person is a slave and 5 dollars if he says they are not a slave.

Rehnquist Conservativism

• Represents a different kind of conservativism from Reagan. • Served as a clerk under Justice Jackson during the Brown years. • Right before he stepped down, he ends up not being aligned on many issues with Thomas and Scalia - the most dramatic of these is his vote in favor of the FMLA. • Starts serving in the 1970s and becomes Chief Justice under Reagan; complicated confirmation • Memo about not overruling Plessy and some anti-Semitic remarks; changed over lifetime

How do the Civil Rights Acts respond to the Jim Crow laws?

• Response to Slaughter-House Cases; creates a federal cause of action to respond to Jim Crow laws • Prevents discrimination from places of public accommodation; inns, public amusement, theaters • Conservative: cemeteries, schools and churches were taken out of the act; fine, misdemeanor; federal • Survives for 7 years before the court rules it unconstitutional; would have been a different country Ruled unconstitutional in 1883; 13th isn't far, 14th only applies to State Action

Ratification

• Resulted in an astounding number of documents • However, only a handful of major arguments just rehashed. • Expectations uncertain o Early Adopters: Delaware (unanimous), Penn (46-23), NJ, GA (both unanimous) PA really jammed the Constitution through via procedural tricks. o Connecticut (128-40) o Mass (187-168) - not a lot of confidence about whether the Constitution will win out in the end. • Bad news o Mass vote (above) o NH Adjourns • Finally, NH ratifies and becomes the 9th state to ratify, but Virginia and New York, the two largest states, had not ratified. o Madison and Washington are embarrassed that their own state won't ratify o Geographical issue: those ratifying states are split up into three little pockets if these two don't ratify. o Economic issue: Shipping out of NY, tobacco out of VA. • The ratification debate, then, really involves the effort to persuade NY and VA.

Report of Arbitrators at Providence, Containing Proposals for a Form of Government

• Rhode Island had no charter from England in the beginning. The English settlers who came to the area formed their own systems of government. o Self-Governance o At this time, they were considered troublemakers because they believed in total self-government. o Some women signed (probably widows) o RI eventually gets a charter from the King in order to protect them from the other colonies who claimed that they did not have a true government. o RI gained in their charter the right to continually elect their governor.

Arguments for bill of rights: the Opponents' Contribution

• Rights are already in the Constitution - no religious test; habeas corpus; no ex post facto law - many more - so if you really believed rights didn't have to be in the Constitution, you wouldn't have put those in. • Necessary and Proper Clause, General Welfare Clause - all these are completely expansive. Increasingly, shift towards implied powers and positivist conception of rights.

• Rights

• Rights: existence, enumeration, enforcement? o Confusion

"Reasons and Considerations Touching the Lawfulness of Removing out of England into the Parts of America"

• Robert Cushman, 1622. • Tract describing the early months of the Plymouth Colony.

Frederick Robinson, "Oration" (1834)

• Robinson: elected to the MA Legislature in 1834. • Hated any group that was "privileged"; known as an enemy of the National Bank. • Sponsored a bill to abolish imprisonment for debt and supported the General Trades Union and unionism in general. • This piece was an oration before the Trades' Union of Boston and Vicinity on 7/4/1834. o Self Perpetual: Some say that they have a clever scheme whereby they pass complicated laws that can't be understood by anyone but lawyer, so they perpetuate themselves. o Aristocracy: Attorneys are members of a secret, unintelligible group that resembles an aristocracy.

Experimentation with Governance - Rhode Island: self-government

• Roger Williams, Ann Hutchinson and others are forced out of Massachusetts • Form various types of government • 1663 Charter from king grants assembly with power to elect governor. • No direct English control • What we would call government by arbitration: dominant in RI, and parts of NY that are under Dutch control, and parts where Quakers had control. • Authority comes from everyone agreeing. • RI is so into democracy that they do not show up for the Constitutional Convention, so they get written out. • Very prominent names; there are 2 women on there also. • In RI, the assembly will always elect the government. With Connecticut, they are one of the most locally controlled governments.

English Governance in America by 1700 - 3 branches

• Royal Governor (RI and CT keep local governor) • Local Assembly; • Privy Council o 3rd branch of govt is the King. o Usually royal governor and local elected assembly o MD/PA: Proprietaries in name only o RI/CT: Royal assemblies elect governor

Life as indentured servant What was it like to be an indentured servant?

• Set term of years for which one will be indentured. (Whereas slavery is unbound by time). • Indentured servants have some recourse in the courts for mistreatment. o However, the remedy was not total freedom, but being placed under the control of someone else. o The servant is seen as a piece of property • The deed was supposed to be in writing, but in the American context, that ideal went out the window, as the precise terms of the contract were lost along the way. • Terms: o Originally, it was a set amount of time - 7 or 14 years. • As the system evolved, it turned to an age-based system - free at 21 or 30, for instance How many people came this way? • Of people who claim descent who are white, 60-80% of people were originally indentured servants. What happened at the end of the servitude? • Many people were given land or some sort of severance package

What are the arguments in the debate over the 3/5 clause in early July?

• Should slaves be included - regardless of their lack of voting power. o The South wants them to be included as individuals, of course because there would be greater representation in the South. o The North doesn't want them to be included, because it would give the South too much power. • Ultimately, they compromised - 3/5 of the slave population should be counted for representation purposes. • This clause shows up twice in the Constitution. • Madison's Alternative: One house counts free white people, and one house counts all others. By the time the Convention meets, some states have already outlawed slavery and a couple more are moving toward compensated emancipation

President Roosevelt's "Court Packing Plan" Speech (March 1937)

• The Court is put in an awkward position because FDR and states are passing legislation so quickly and expansively. • In the beginning, some of these smaller legislative regimes are upheld. • Over time, however, the Four Horsemen and another become solid in striking down these laws 5-4 • FDR's Court-Packing Plan o Proposes being able to add a justice to the Court whenever a 70+ justice refuses to retire with his pension. o Rationale: Younger people accept and understand this new world where the government has a role to play in fixing the ills of society.

How is a witch prosecuted?

• The Court of Oyer and Terminer, convened by Governer Phips for the purpose of hearing the witchcraft cases, focused on spectral evidence and used such "proof" to condemn the "witches" to death. o Examination of the Body: The courts would look at the bodies of people accused of being witches for marks on their bodies that showed that they had the devil within them. o Spectres: Tried to test spectral evidence by corroboration and asking witnesses. o Confessions: So many people confessed to being witches. Of those confessed, none of them were executed. If you confessed, you were brought back into the community. All of the confessions looked the same, rather than being tailored to the accused actual actions. o Confessions meant no execution, but you would have to implicate others o o No defense lawyers: Rather, there were justices of the peace who acted as inquisitor. o Judges resigned in protest, but that didn't seem to stop the prosecutions. o Most people who were executed proclaimed their innocence until death.

What is the relationship of the 14th Amendment to the "Black Codes" and the 1866 Civil Rights Act?

Fourteenth Amendment (1868)

• The Fourteenth Amendment was then introduced in order to constitutionalize the 1866 Civil Rights Act o The Fourteenth Amendment goes beyond the 1866 CRA and establishes a set of issues about paying the debt for the war. It forecloses the possibility of paying the slaveowners for releasing their slaves. There is no right to money in the people you used to own. o Negates the 3/5 compromise. At the time the war ends, only 5 states allowed blacks to vote. The Northerners were worried that, eliminating the 3/5 clause would give the South enormous power without allowing blacks the right to vote. Thus, section 2 sets up an incentive structure - only males, 21+ who have been given the right to vote count for apportionment purposes • Problem for women because they can still be counted, but cannot vote. o Privileges and Immunities Clause Since this Amendment was adopted, there has been the question of whether it was intended to apply all of the Bill of Rights against the states. They would have thought of this clause as forcing the states to grant all privileges and immunities to their citizens that were extant in the Constitution and the amendments to that point. Historical Review: The author of the amendment probably actually thought that this was to be so broadly construed. • However, some people did not think this was the case, and did not construe it so broadly. The 14th Amendment was as much a political and sociological statement as it was a legal statement, so many people who voted for the amendment without thinking that the language would be litigated in this way. • There was not as much caselaw so nimbly parsing the words of the Constitution. • Replaces white citizen standard with equal protection; shifts conversation; forecloses payment for slaves • Says only males w the right to vote count for apportionment; negates 3/5 compromise; bad for women • Privileges and Immunities Clause: question of whether to apply all of Bill of Rights against states

The Trustees of Dartmouth College v. Woodward (1819)

• The NH legislature wanted to convert Dartmouth into a public university in violation of its original charter. • ***Story may have been worried about the ramifications of this case on Harvard. He helps Webster in his arguments. • ISSUE: Is the charter a contract under the Constitution which cannot be interfered with by an act of the legislature. • Because this is a private contract between the state and the private investors with expectations that the corporation would be run under the terms in the charter. • The corporation may be for public purposes but that doesn't mean that the assets may just be grabbed by the state. • The fact that this is even a hard question for the Court shows that there was considered to be more leeway in the extent that the government could regulate. • STORY: The assets are private, this is a private contract. BUT, you could put a reservation clause into the charter in order to retain power over the corporation.

Civil Rights Act of 1866

• The Republicans in Congress are furious at the attempted perpetuation of slavery. They, in turn, pass the 1866 Civil Rights Act o Makes illegal many aspects of the black codes: Everyone has the right to sue the state and those actors if the state treats them unequally. o All have the right to own personal and real property o Standard: All people should have the rights of white citizens. The standard is based on the way white people are treated. Equality = White. This notion will vanish over the next few decades o The 13th Amendment did not have an enforcement provision, so the CRA attempted to give this. • Johnson, believing that this would lead to miscegenation, vetoes the CRA. This veto is overcome by Congress.

The Supreme Court Bar and National Values

• The Supreme Court Bar: Arguing in the Supreme Court in order to define the values of a burgeoning America. Great Oratory. o Argued based on large political principles of the country's direction. o Became very famous Luther Martin - McCulloch - drunk while arguing William Wirt - AG, argues on behalf of the US in many cases William Pinkney - very ornate Daniel Webster - Argued 168 cases, Dartmouth, McCulloch, Gibbons • Different experience; national reputations for lawyers; elite today, but nobody knows them • Then, it was the exciting place; more political arguments, great orators, less partisan • Justices didn't ask any questions then; today, oral arguments are more for show • Opinions essentially plagiarized the winning sides' brief; defining what the nation should be • Luther Martin: McCulloch defense, drunk while arguing; William Pinkney: corset, 3 hours to ready • Daniel Webster: most famous; 168 cases; cult of personality; 1815-36; prominent forehead • William Wirt: AG; argues on behalf of the US for a number of cases

Contemporary repudiations of doctrine of discovery:

• The UN in 2009 created a special commission arguing for repudiation of the doctrine of discovery, and acknowledging the long-term ramifications to indigenous people. • Some churches have repudiated the doctrine of discovery. • But in some ways, it continues today.

James Revel Describes the Servant's Plight

• The Unhappy Transported FELON • A young, London boy, got into trouble, was sent across the Atlantic and was treated like a slave, like a black person. • However, he also gets sick and some slaves take care of him. • One way to become indentured servant: as a convict, you were transported, and you were sold on the other side. o Poem is about that.

Harriet Beecher Stowe, "Uncle Tom's Cabin or Life Among the Lonely" (1851)

• The book was explicitly antislavery; chapter titles demonstrated her concern and understanding of the slave system. • Senator comes home and says he voted for the fugitive slave law. • Fugitive slave Eliza has arrived. • Senator helps her escape to a farm along the way. • Ms. Bird: The female as persuasive in the home, but not in the outside world, like Catherine Beecher, Harriet's Sister. • Eliza pulls at the heartstrings of the Birds because they had lost their son prior to Eliza and her son arriving on their doorstep. • Slavery is about being ripped from your children and family. • Eliza ran away from very kind and benevolent slave owners who happened to be selling the kid because they needed the money - The system is much larger than every individual person. • This is a very ethereal and visceral argument against slavery, as opposed to the Constitutional argument and Compromises.

What theories of governance appear in the Mayflower Compact?

• The compact creates a "civill body politick" • Where does the authority come from? o Those who signed it and those for whom they are signing (women/children) Women, children, some servants did not sign the document. • This is not a radical democracy. They explicitly accept monarchy on multiple occasions in the document. • "In the name of God, Amen." They are centering themselves first as religious. • "In the presence of God and one another" - language now at weddings, religious and political. • Covenant: a contract, a set of promises, some kind of agreement. • "covenant & combine" - you are becoming a part of a new whole. • "into a civil body politic" - a government

Lincoln

• The election of Lincoln - Lawyer o Typical of many of the people in the Midwest at this time. o Born in Kentucky, pretty southern-type state. o Moves to Indiana 1816-1830 o Moves to Illinois 1830 o Illinois House of Reps in 1834. o Decides to be a lawyer - admitted to the bar in 1836. Corporate lawyer, representing banks, railroads, turnpikes, etc. 336 cases argued in front of the Illinois Supreme Court. • Always portrayed as a lawyer; may not have known how to read before being admitted to the bar • Born in Kentucky (VA) in 1809 in a log cabin; why politicians say they started low; moved to Indiana • Argued 336 cases; consider a corporate lawyer; railroads and banks; believed in expansion ofprogress • Thought the law was a unifying force; let the law become the political religion • Role of mothers to inculcate the reverence for the law

Public nature of the corporations in a democratic republic

• The entities here feel confined and regulated - all the charters start with "for the benefit of society" - why we are giving the corporation all these powers. You had to go to state, say you wanted to be a corporation and what you wanted to do... today, you just have to file with the state; much fewer restrictions. You file a piece of paper and can do anything that is not completely illegal. In this world, you asked permission to be a corporation because you were going to benefit society in a way that a person alone could not do. • All have limits on property. Worried about corporations getting too big. They worried that if too much power accumulated, it would rival the state. that some people would profit, and be able to buy people in the legislature. • You really don't want banks to get super big, because banks hold money.

Legal Segregation

• The fall of the Civil Rights Act spurs a boom in segregation • Though we often think of segregation as affecting individuals, it is based in state requirements for separation • Plessy v. Ferguson

Documents relating to Quock Walker (1781 - 1783)

• The family he was originally enslaved in, basically said they were going to free him. • He was told he would be released, but was not released. He was beat by someone and brought suit. • Jennison beats up Quock Walker - debate about whether this really happened, or whether people just agreed on the facts. • The Caldwells fund the Quock Walker side. • Question: Is Quock Walker enslaved? • Jennison: says he had a right to beat him, because he is a slave. • State court: the MA constitution does not permit slavery. o All men are born free and equal. o The court says that language means there is no slavery. You cannot be an enslaved person in MA. o Takes that language and makes it positive law - you can make it be enforced. • Interesting because VA constitution has the same kind of language. o People debated that language in VA, because of enslaved people. They decided it was just rhetorical language; not really enforceable. • Preamble of Constitution today is still considered to be rhetorical.

"Citizen" becomes a battled-over word.

• The hope was that by obtaining that status, one would have all the same rights as the highest of those in the caste system • However, that is not the case. One could at once be a legal "citizen" but not have the rights of all other US citizen. • Williams v. Mississippi: Plaintiffs challenge poll taxes and literary tests. The literacy test requirement had a carve out for those who descended from ancestors who voted before 1850.

Growth of law firms

• The large law firm begins to grow in this period • Associated with the development of the corporation and mass wealth.

What does the Fugitive Slave Law (1850) prohibit as a legal matter? How can an African-American prove he or she is not a fugitive slave?

• The law now forces the Northern states to help out in perpetuating the slave state. No longer can they just turn a blind eye.

Regulation of Abortion/Birth Control

• The number of children families have during this time declines from 7 to 3.5. They must have been using birth control. • Comstock Act: prohibits the promotion or selling of abortion techniques and products. Can't hand out information about birth control. o Law is challenged, but is upheld as constitutional under the State's police power to regulate morals and the sanctity of the home. • Margaret Sanger: Begins to advocate for access to information about birth control and birth control products itself. • States reverse the quickening doctrine: o Abortion regardless of whether the fetus has moved (quickening line) • Begin to say that abortions are acceptable if performed by doctors.

Adoption

• The state becomes concerned with whether the home is fit for the child.

European views of tribes

• There is no illusion that the land is not filled with people who have political institutions - everyone in Europe understands there are tribes. for Europeans, the notion of using the tribes to critique European culture is pervasive (excerpt from The Tempest). This motif will continue.

Early federal policy toward Cherokee: tensions

• Treaties with the U.S. government - The Constitution refers to the tribes, but doesn't really explain what the relationship is supposed to be. o 1785 Treaty of Hopewell: delineates the tribe's land. Asserts federal control over issues about trade and management. o 1802 Compact: During the Jefferson administration, he became worried that the tribes might join with foreign nations against the United States. The Compact of 1802 said that Georgia would obtain lands that the US had maintained in exchange for the US peacefully and eventually extinguishing the Cherokee tribes within the state of Georgia. What does ASAP and reasonable and peaceful mean in the compact? During this time, the US was already moving toward a removal policy on the federal level. Also acting under the rubric of civilization - trying to civilize the Native Americans. Trying to move the tribes toward agriculture and away from nomadic lives. They see the tribes as eventually assimilating.

From "Baron and Femme" to "Domestic Relations"

• Treatises go from baron/femme to domestic relations. No longer the hierarchical baron and femme. Shift in the whole notion of family; begin to struggle about what should be the role of women in the family. Baron and Femme (early treatise on family law): Notion of family law structure that is hierarchical.

From "Baron and Femme" to "Domestic Relations"

• Treatises go from baron/femme to domestic relations. No longer the hierarchical baron and femme. Shift in the whole notion of family; begin to struggle about what should be the role of women in the family.Baron and Femme (early treatise on family law): Notion of family law structure that is hierarchical.

Herman Melville and Bartleby the Scrivener: A Story of Wall Street (1853)

• Turkey gets drunk at lunch every day. o Suggests he hates his job as a human copy machine. • Nippers is always fixing his desk because it is uncomfortable to him. o No OSHA here. • Ginger Nut is a young apprentice, but he ends up just running errands for the office. • Bartleby arrives o At first he is the star because he slaves away all day without stop. o Then, however, Bartleby says that he would prefer not to read the copy with him, as he would expect any copyist to do. In this moment, the narrator is bent over his desk and just sticks his hand out with the paper but is turned down. • In the end, he can't get rid of Bartleby, and eventually moves. Bartleby dies in the tombs where he is taken when physically removed from the building.

Law Schools Begin - two competing law schools

• Two Competing Law Schools - proprietary model and university law schools.

What are the differences among Spooner, Phillips, and Douglass in terms of slavery and the Constitution?

• Two totally different interpretations of the Constitution's view of slavery o Wendell Phillips, William Lloyd Garrison - Constitution is Pro-Slavery o Lysander Spooner, Frederick Douglass - Constitution is not Pro-Slavery

Lyndon B. Johnson, Address to Congress: We Shall Overcome (1965)

About Selma riot Important to the country to get behind civil rights He taught Mexican-American kids- you can see prejudice in the faces of children Right to completely participate in democracy

Martin Luther King Jr., The March on Washington for Jobs and Freedom (1963)

America has defaulted on a "promissory note," it has given the Negro people a bad check Unfulfilled promise, for equality and freedom promised to them when slavery was abolished

Pennsylvania Constitution of 1776

Bicameral legislature Right to jury, HC - from Magna Carta

o Barnette (1943)

Jehovah's Witnesses declined to pledge allegiance and salute the flag based on their religious beliefs Gobitis The Court says, 8-1, that children may be required to salute the flag. Stone Dissent: Infringement of personal liberty always claims the high ground and always infringes on the rights of political minorities. Barnette Overrules Gobitis, and holds that it is unconstitutional to force people to salute the flag. Rights are what American democracy is all about, not just the process. Frankfurter Dissent: There is no difference between this and Lochner.

Achievements of Progressives in the Presidency

Pure Food and Drug Act • Government steps into food regulation • Beginning of the FDA • Federal government reaching way into the states in order to regulate for the public health. Meat Packing Federal Reserve System • Federal government regulation of banking and the money supply. Federal Trade Commission Bureau of Corporations - baby version of the SEC National Park Service

Failures of Progressives

Race • 80% of African Americans still live below the Mason-Dixon Line. • Lynching exploded, but the government did not do much to stop them. • Tulsa Race Riots - 1921: arose over the touching of a white man by an African American teenager. Thousands of people rendered homeless and 300 murdered. o No one was ever charged with crimes for this riot. Immigration • Also accepted by the Progressives as being racist. • National Origins Quota Act: If you cannot become a naturalized citizen, you cannot immigrate to the United States. o India, China, Japan, SE Asia - only people from the Philippines were allowed to immigrate with this shift. • Alien Land Law o Facially neutral - under Plessy, as long as you don't discriminate on the face of the law, you can discriminate. o Here, prohibited Asians from owning land in the West. The Progressives did not give any thought to these issues.

o Letters Between Abigail and John Adams

Remember the ladies He argues: social order would collapse; women have the authority of the petticoat - don't need the vote • Abigail Adams says that the power of the King over America is like the power of men over women. Applying the same rhetoric to their own lives. o John Adams responds that the real power in the family lies with the wife at home anyway, so this is not the same.

What issues arise with historical intermediaries?

Should be conscious that his story is being appropriated and in modern language.

Eastern Tribes

Sometimes grouped by linguistic similarities; sometimes described by tribe names (usually The People of X, geographical location)

Separatists

The people who land in America are called Separatists. Many in England think the Anglican church looks just like Catholic. Protestants are starting to read the Bible themselves, in English, and finding there was no cathedral and stained glass - the church of Jesus was small and people joined it themselves, and there was not an authority. Ancestors of dominations like Presbyterian, Congregationalists. They become the Puritans, wanting to purify the church, return it to what is intended based on the New Testament. Separatists believe the whole thing is so corrupt that you can only find the true church by separating yourself. They don't think it can be reformed. They first sail off to the Netherlands. They ended up deciding the Netherlands were not separate enough, and that is where we pick up the story. Their new place comes in the form of land in Virginia.

University Law Schools

Transylvania Law School (1799) Maryland (1816) failed because they based study in case law. Harvard (1817) • Transylvania Law School in Kentucky; John Harlan first law school educated SCJ; learn from treatises • Harvard becomes important because it doesn't fail; 1828, only one student; Story takes over the school

Sherman Antitrust Act

. Aimed against the business form of the trust. Completely ineffective at taking down Standard Oil, however. o In order to get around the Sherman Antitrust Act, corporations tried to get acts like the NJ Corporation Act passed -

Adamson v. California (1948)

- Refuse to enforce the 5th Amendment Dewey Anderson accused of murdering woman in burglary. He had served time for robbery 20 years earlier. Decided not to take stand, because then that fact would come in, and he would be convicted. So he does not testify. In closing, prosecution said: not word from him, not one word from single witness. Adamson raised the question: is this a violation of the right not to self-incriminate? Can you refuse to take the stand out of fear of self incrimination? That went up to SCOTUS. (Court said it was fine. All these early cases do not go well for people.) But in the decision, Frankfurter and Black pull in opposite directions. • Frankfurter says court should selectively incorporate rights. Should be selected case by case. Should be worried about legislatures, not rights. • Black begins to argue they should all be incporated. In dissent. Deference vs rights.Reed majority: right against self-incrimination does not apply to the States Black: dissent; believes all the rights come in; Frankfurter: dissent: still about deference

1887: Interstate Commerce Act

- prohibits pooling agreements

Historians / legal historians on Citizens United

- the Citizens United decision is completely inexplicable. Politics aside. That was just not what people understood the corporation to be. Particularly for American corporation. • Being pushed by economic growth, etc. You don't see the bad things at the moment; just see the potential and good things and potential for growth. Don't see the way certain groups of people are profiting immensely, because they look like the great people profiting from things. o The age we live in is similar to late 19th century - things that significantly altered the way people experienced the world. Particularly in the speed / level of connectivity with others in the country. o Like ipads, end of paper. o Law bending to encourage these kinds of approaches.

Catholic - Legality of Discovery; what gave one the right to the newly discovered land?

1. Catholic - Discovery is enough, control is not important a. The Pope speaks for God, so if you don't respect his authority, you will be excommunicated and you will, therefore, go to hell. b. Popes for a long time had issued statements saying that they had power to occupy lands i. Innocent IV and the Papal Bull: The Pope is in charge of the earthly Christian commonwealth, and his task from God is to bring Christianity to those people who do not have it. 1. Theory: Where people were outside of Christianity, it was OK to conquer them for two reasons: a. Redemptive to bring them Christianity b. Completely outside Christianity and thus natives have no legal rights ii. Papal Bull: Monarchs are granted the ability to discover and obtain for the Pope certain lands. 1. Based on the belief that discovery was enough, and control was not important. Treaty of Tordesillas (1494)

Theory: crown delegation by charter or patent

1. Charter or patent: crown delegated authority • How do you get authority to be delegated from the king, down to the people who will occupy / settle / run those ventures? • The crown turns back to these charters: Charter for Hereford (1597); "Endecott Charter" for Massachusetts (1629). • What it means is, where are the powers and rights located that you have, when you get it from a charter - what is your evidence? • Magna Carta is suddenly rediscovered in the 17th century

What types of behaviors are being regulated by the laws passed in VA and SC between the 1660s and 1740s? how are the boundaries of agency permitted to enslaved people being altered? What categories of status do the laws create? What remedies are available for enslavd people? Who is the audience for these statutes? How is the regulatory system of slavery changing over time? What does it mean to be placed in the category of "slave"?

1. Laws about who and how a person is made a "slave • Make it clear how you go from a person to slave - story of dehumanization. 2. Laws govern daily life and status • Slave codes bar people from doing many things. • Can only wear certain kinds of clothing. Creates certain sense of status, and allows quick identification. visual hierarchy. No matter how much money you manage to make, you cannot hold yourself out to be a different kind of person. • Cannot learn to read or write. For 19th century stories of slavery - the importance of reading and writing as a way of pushing back against the system. • Cannot be together with large group of other people. Enormous anxiety by whites about people getting together for celebrations. Recognition of the inherent violence in the system. Concern that people will plan rebellion. • Cannot get married without permission, work anywhere else to get money; laws of inheritance and property do not apply to you. • Every part of existence is governed by people. • Exists in the North too: Isaac Royal House, in Medford MA, still has standing slave quarters. They give tours. • Created resident mentality: most people who were enslaved did not live on large plantations. Most lived with about 10-15 other enslaved people. Usually, the person who owned them also lived in proximity. Created enormous swings in behavior between kindness, and over the top torture. Draconian shifts back and forth. Particularly for enslaved women, created constant possibility of rape. Pervasive within the system. 3. Laws govern resistance and escape • Any large scale resistance is squashed. • Bacon's Rebellion (1675) • Particularly in cities, where they can meet other people and plan. • In all cases, unsuccessful, and treated with brutality. Authorities rounded up everyone who could have been part of it and execute them. Rebellion is suicidal for you and anyone you knew. • Instead, we saw lots of resistance and escape. Often would escape for 2 days. Just long enough to exert some autonomy and then come back.

Events from 1750 to 1776

1756: Seven Years War begins; French and Indian War 1760: George III 1761: Writs of Assistance Case 1763: Seven Year War ends between France and England (Canada becomes British) 1764-68: British acts 1770: Boston Massacre 1773: Boston Tea Party; Coercive Acts (1774) 1774: Congress meets 1775: Fighting - Leingon and Concord; George III says "rebellion" and 2d Congress convened 1776: Common Sense (January); Declaration of Independence (July)

Treaty of Hopewell

1785; sets Cherokee borders; about the size of MA; peace for white settlers; interpretations differ Will keep white settlers off your land if you don't make deals with the French

1802 Compact

1802; Jefferson signed; makes GA think the Feds will extinguish Cherokee claims; removal in works Called it civilization plan; agricultural training; education; assimilate; by 1808, Jefferson thinks assimilate 1819: funds to Cherokee to start school programs

Johnson v. M'Intosh

1823; land speculators, question of title from Indians in West; US has exclusive right to extinguish title Holds that tribes have merely a possessory right of occupancy; can extinguish; sets up removal

What is the significant of twelve original amendments?

1st Amendment is not at the top because it is the most important but because the first two were knocked out.

Gitlow v. United States

: Applies the 1st Amendment against the states. • Supreme Court upholds Gitlow's conviction for treason for being a Communist speaking out against the United States. • Holmes and Brandeis argued in dissent that Gitlow should be let out of jail because the 1st Amendment applies to the states. • The majority does accept that the 1st Amendment applies, but leaves Gitlow in jail. In two other cases the Court reaffirms this: Stromburg, Nehr

Congress's Reconstruction Plan

: By 1871, all of the states have been admitted back to the Union after having a new state constitution.

Federalists

: Parchment barriers and pragmatic faith • Proponents of the Constitution. • John Marshall, Alexander Hamilton, Madison, John Jay

Euclid v. Amber

: Taft court; Allows municipal zoning.; upholds zoning as constitutional; cities and states can control how people live

Gong Lum

: Taft court; As important as Plessy perpetuates Plessy; upheld separate but equal; 1927

Gobitis Family

: case involves flag salute. • Idea of saluting the flag goes back to writer of Pledge; originally does not have "God" in it. Bellamy designed a pledge to go with it. Original salute looked like Nazi salute. • Jehovah's witnesses believed you did not saluted a flag. • ...(computer killed self)... now, Court says it got it wrong; people stop liking Gobitis because kicking kids out of school for not saluting flag is like Nazis.

Josephine Rucker

: founds AA women group. Many women's groups will not allow AA women.

Jimmy Doolittle raid

: in response to Pearl Harbor, US did a raid. Memorialized in this film where Reagan thinks this is what people should remember - the Doolittle raid, which was a movie about American patriotism. o This is the piece that comes back in a very interesting way. o If you look at young conservatives for whom Reagan embodies why they are conservatives, it is this set of values - this is where patriotism is. o He is an unbelievably important conservative. o Long legacy on the court, long legacy in politics. He reconfigures the republican party around him; forces the Democratic party to reconfigure in response. o He will go down as one of the more influential presidents. Making use of being in the right place at the right time. o He will slowly put more people on the Court: Kennedy. First Bush puts Souter and Thomas on the court. They were not thought to be conservatives when they were put on.

Alice Paul

: lawyer. Goes to England, where British suffragist movement is up and going. • Mary Poppins mom: that was not how it was; they were really radical, hunger strikes. • Alice Paul becomes frustrated with American suffrage piece - had been doing nice things, parades. Says we are not getting anywhere with the parade. • She begins to picket. They begin to ipcket White House. One of the first groups to do that. • Then she goes on hunger strike. They force feed them in prison; force tubes down throat.

Constitution of the Confederate States (1861)

A lot of the Constitution is the same; in a rush, so lifted; some differences; slavery repeatedly named Ban on importation of slaves, but allows for domestic trade; explicit reference to God; state's rights Have to join the confederacy to participate; all about legalizing slavery; you want this world, join Paranoid for slave rebellions, or freed blacks coming in; constitutional right to own someone else No language that imagines a multi-racial world; no free African American; economic world

Practical problem: the Atlantic - space for self-governance

1. Practical Problem: the Atlantic. • How are you going to govern people, when it takes months to sail there? • Space for self-governance - how much? Language in the Raleigh patent, given to Walter Raleigh to settle what becomes Virginia - one of the first legal charters we have. • Tries to work out how you have people sail all the way across the Atlantic with a piece of ppaer, and be recognized as authority of the Crown. • By the grace of God; to have and possess - familiar language. • New language: 3rd paragraph says you have all the rights and privileges that you have as an English person. • And those people have the right to make laws, as long as the local laws are related to the laws of England. If the laws you pass do not resemble the laws of England, they are void. • Like the modern theory of preemption. You can have law, but it has to conform to a bigger idea. • Raleigh went off, settled Roanoke, then the settlement vanished. Current theory is that they settled into groups, some were absorbed into tribes, and killed in intertribal disputes. • The Roanoke settlement fails.

Rhode Island Cases

Adultery and Fornication • Typical Pattern: o Remedy: Whites - pay a fee Blacks - be whipped o These cases are brought up usually because someone is pregnant but not married. You could make the two people marry, that fixes the ill on the community. Also allows for the court to establish paternity and put a man on the hook for support of the child.

Stamp Act of 1765

Any legal paper had to get a stamp; tax for any form of legal proceeding; lawyers hated it House of Commons do not, and therefore cannot represent Americans; only those chosen Take it for granted now, but it used to be a King leading by bloodline; crazy to pick someone to lead No taxation without representation; not about no taxation, just want the representation

Progressive Movement

Applied to both parties; belief that the power of government could change people's lives Government could do more reform and play a role; all about democracy and reform; New Deal Without the amendments, couldn't have the New Deal; fundamental shift to more Federal power

What policy concerns are developing about the corporation?

BIG QUESTION: Is the corporation public or private?? LR article from 1830; worried that they will take over the State; don't want to get too big and powerful Everyone embraces corporation, but understands there is a central problem; keep it regulated Unclear how limited liability will play out; does protecting individual officers give more/less control

How does the Revel poem (1680) use the rhetoric of slavery, servitude, and race?

Boy got into trouble, sent away, treated like a black slave, but not; racial divide already; cautionary tale • Aims to tell a narrative to keep young English boys in line. If you go wrong, this is what will happen to you. • Many assumptions / ambiguities about the system. • Racial component to the "scared straight" story; still troubling in 20th century. • Point of story: as bad as it is to be apprentice in England, if this happens to you, you are sold like a horse. • Aimed at certain group of white, less affluent, English young men. Selling people is not what you do, not what happens to white people - part of horror of story. • Already assumption of a racialized hierarchy: They are all bought for life; he is not. Your race determines which status happens to you. "He said he would not use me as a slave / But as a servant if I well behav'd." Notions of race and status in 1680s are beginning to align a certain way, on both sides of the Atlantic, with respect to the American experience. Importance piece of evidence of the way indentured servitude, race, slavery beginning to pull in different directions.

TSA Poem

Bilder's current favorite; dark skinned doctor with a bad name; can't go through TSA the same again • Starts with classic way we go through the airport search. We all relate to opening - wristwatch, Reeboks, the belt. • Goes from impersonal to more personal disrobing. • The desire to believe it is professional and random. o Myrtle, Doris, Ethel - evocative of older women, typical older women • "do my best Midwestern grin." o Opposite of mid-eastern. o Center of what it means to be a true American. o People like him must not be born in the Midwest. • Mohammed alias Mo o Americans always shorten names. This is not nickname, it is alias. Quasi-criminal. Mo sounds ordinary, like 3 stooges. • Airports - places where people come and go a lot - he mentions big airports that are international; all across the country, it is the same everywhere. • If you travel not clean shaven • The experience of what law does to people.

Industrialization

Centralized Industrial Nation: 1870-1920 Out of the civil war, more powerful national government and less of State boundaries State as a regulator becomes less effective; national boundaries more set; huge population Civil War: 31 million; doubled in 1890, doubled again to 106 million in 1920 Tons of immigration; 14% born elsewhere, 12-13% today • For many people, especially those in business, those state boundaries no longer seemed as relevant as they once were. • In this period, the US really moves beyond even the coastal boundaries, gaining Puerto Rico, Guam, the Philippines. • Around this time, because the US Constitution has no physical boundaries, people thought that the US would expand beyond the continent. • The population is booming between 1870 and 1920 and this is due to the foreign born immigrants - 14% immigrant. • The tribes have been moved onto large reservations and, under the Dawes Act, private parties have gained much older reservation land (see Oklahoma) • During this period there were a variety of political parties, not just the main two.

Carl Sandburg, The Lawyers Know Too Much

Classic anti-lawyer poem; lawyers have no substance; horses happy to draw the hearse; stiff dead hand • Dated because horses are so dominant. • Lawyer language too complicated for most people to understand. • Sense of words getting inherited without lawyers even understanding them. • What is left when the lawyer dies? The hearse horse snickers. • He is described as only bones. Beginning of poem says bones turn to ash. Pretty diminishing poem. • Who is Bob? Ordinary, common Americans talking. • Poets also work only with words, like lawyers. But lawyers do not create something that is lasting in the same way. • "When a lawyer cashes in" • Refers to when a lawyer dies; also when a lawyer gets paid. • The law being this way because it has always been that way, instead of imagining what it could be instead.

Cruzan v. Director, Missouri Department of Health (1990)

Clear and convincing evidence safeguard for right to die/refusal of medical treatment; vegetative o Loosely around right of privacy. o Rehnquist opinion: in some ways, classic Rehnquist. o Accepts that there is a privacy piece here. o Marks the beginning of Scalia/Rehnquist split on things; and Scalia beginning to be more edgy. Beginning of Scalia saying "The court should not get involved; this is not in the constitution." • He and Rehnquist begin go mark 2 different strands in conservatism.

Privy Council

Colonies cannot pass laws repugnant to the laws of England; cases argued in England; two year process Beginning of American legal culture; just read books, same with politics; some women want it too Part of comfort with eventual Supreme Court; notion that somebody makes the call in the end Third branch w the Royal Governors and Assemblies

U.S. v. Lopez (1995)

Commerce clause; legacy of Rehnquist; start to limit Congressional action; everyone though it was fine Today, everyone now sees it as a little attenuated o Congress said they could regulate guns on school property because it fits under Commerce Clause. o When Bilder was in law school, classic con law exam said: here is a thing that looks local; is it constitutional for Congress to regulate it under commerce clause. The answer was yes. o Lopez represents a pull back from the 1937 case. First major case where court struck down legislation passed by Congress under commerce clause. o Marks whole turn on the Court toward beginning to protect rights it had not protected for a long time.

The Comstock Law (1873)

Comstock Act (1873) Family planning; banned anything immoral sent via federal mail; no info on birth control Must have been working; average birth rate from 7 to 3.5; constitutional under police power Obsessed with moral purity; Margaret Sanger: what every girl should know pamphlet on birth control

England - what gave one the right to the newly discovered land?

British Justification First in time theory trumps Pope (Madoc, 1170); argue Pope's power was ultra vires Jesus refused to divide inheritance in Bible, Protestants believed Pope had no power Argued that occupation matters anyway more; hence sending people to settle a. Henry VII breaks from the Catholic Church and established the Church of England. b. Because he broke from the Church, the Pope can no longer help divide the world up as the leader of all Christendom. c. Patent to John Cabot (Giovanni Caboto) i. Gives Cabot the power to sail the world and discover lands, and possess the lands that were occupied by non-Christians. ii. Different theory of legality from the treaty of Tordesillas in that: 1. Taxation: 1/5 of gains to the crown from these endeavors d. What gave them power if not from the Pope? iii. First in time: Madof got there first iv. Pope was ultra vires because Jesus was asked to divide an inheritance and he refused in the Bible. v. MUST OCCUPY AND SETTLE the land, not just discover 1. Thus, the English try to send lots of people to settle the continent.

Bunker Hill

British have tremendous losses; declare war.

Romer v. Evans (1996)

CO constitutional amendment to protect against LGBT discriminatory practices; assumed acceptance Court found it unconstitutional; Kennedy majority; Scalia: dissent: gays are a privileged minority Believe they have tons of political power; likes majoritarianism

Constitution Writing (CT, RI, MA, PA)

CT and RI do not see a need to write Constitutions until 1820s and 1840s; others start writing No one was really sure what to write; started off with rights and branches of governments MA specifically referred to Harvard; not clear on boundaries to stick to; today, know what not to put in Had a lot more positive things that government is supposed to do for the people; education in MA Bicameral legislature; Senate and House from Lords and Commons; slow down legislation to think Possible for unicameral systems; some like it PA: lists legislative and executive power as Supreme, and then also lists courts MA: judiciary has their own chapter to put them on equal footing; first to be ratified

Jim Crow Laws (1875)

Can prevent someone from coming into a store; if you don't like them there, you don't let them in Piggy backs on prejudice; dominant majority view; does not start by discussing race

Coverture

Continues to form the foundation for women's property; marriage still defines status; civilly dead Family law was baron and femme hierarchy; but the language of the revolution ripples in this area Soon, flip from Baron and Femme to domestic relations; awhile before family law from there

Muller v. Oregon:

Court accepts limits on women's hours at work. There is a public interest in preserving the strength of mothers and their children. The wellbeing of the race suffices to protect her from the abuse of man. Exception to the rule; women's labor condition; sympathetic to women and children 9-0 says labor regulation to 10 hour days is okay (just like Lochner); women need protection Physical and maternal functions; wellbeing of race; must protect her greed; paternalistic • Within 10 years, that is extended to men. Court begins to see its way wrt hours legislation; limiting 14A. • Big thing in this period is child labor legislation. By 1914, all but one state has child labor laws. National Consumerly pushes hard for child labor legislation. That case goes up to SCOTUS: can the federal govt regulate it. Hammond v. Dagerh...: Unconstitutional to prohibit interstate shipment of products made by children under 14. • Accepts at the state level that states can have role in labor. But argues the federal govt has no role in dealing with labor and income inequality. • For that piece, we will turn to Progressives and New Deal.

How do the Lochner Justices see the relationship between law and the employee? What is their vision of the employee?

Court refuses to think about modern circumstances; takes a long time; 8 hours for work, sleep, leisure Employees have the right to sell their labor for however long they want; can't regulate under 14th Imagines equal bargaining; classic legal liberalism; no government intervention Harlan dissent: this is crazy for the modern world; totally inaccurate; immigrant workers can't advocate Example of how labor isn't dragged into the 20th century like the corporation was

o 17th Amendment

Direct Election of Senators Allows the individual more representation in national politics. Changes the way in which the Senators interact with the state - you don't just call the speaker of the state house any more. Costs a lot of money to run a senatorial campaign, because you have to run across an entire state. Difference in representation: Senators are now more disconnected from the state.

Declaratory Acts

Allows Parliament to make laws for the colonies; more pay for Governors; no juries in some cases

English alterations shift toward occupation; delegated by royal patent

By the time Queen Elizabeth I comes into power, England is a powerful nation state, and Spain is the archenemy; Elizabeth wants to beat Spain. Portug has shrunken down a bit. Develop counter theory to what Spain, Port, Pope have done. They need a first in time story. • Prince Madoc marker: they find Madoc, Prince of Wales. According to theory, he sailed in 12th century from Wales - long before Columbus, Madoc landed either in Florida or Alabama ish, and he claimed it for the English. • They argue that the Pope's actions were ultra vires because Jewish refused to divide an inheritance in the Bible. Pope does not have authority to divide up the world. • Neither of these are useful theories. • They shift toward an occupation theory. Legal theory that gives you rights not just based on who first got to a land governed by non-Christians. In essence, who has actually occupied that land. The English will make occupation and settlement a central part of their narrative. The Spanish and Port claim all the land but do not settle. The English become all about it, all about moving people over to what becomes Virginia / Massachusetts, as a way of countering the claims of Spanish and Port. The English have this religious message, but they move toward occupation and settlement, based on idea that the English way of using land gives you a right to use the land. Occupation and settlement justifies having possession. This will be the dominant US myth as the country expands. You settle it, you use it, and the fact that there were already people there - just an unfortunate consequence.

Proprietary Law Schools

Cincinnati Law School (1833) • One year model • Geared toward people practicing law, not just teaching lofty ideas and general knowledge for all. • Bar privilege - graduating = bar admittance o Still recognized by Wisconsin. • Cheaper as well. • Litchfield, CT; Winchester, VA; series of lectures that are read slowly and then copied onto notes • Look up the cases talked about, and take more notes; when done, five volume treatise complete • Attempts to transfer the law in an efficient way; dominated politics for a long time • Cincinnati Law School; Timothy Walker: focus on US, not British law

o Letters Between John Adams and John Sullivan

Consent of the people - moral foundation for government Limit vote to propertied men

Letters Patent to Sir Walter Raleigh (1854)

Crown gives patent over lands not actually possessed by Christians Land given in fee simple Broad discretion to set up legal system • Rules must be in line with the Church of England "as near convenient"

What justifications do Haklyut and Cushman offer for colonization? How do they differ?

Cushman piece: • Perform missionary duty to help the heathens; more land and space there (not enough in England) • Belief that the land is just rotting and spoiling; we must use the land properly; duty to go forth • Very different from resource extraction; English want to send people there to occupy • Protestant version of conversion; we are going to talk to people one on one. • The benefits that will come to people as a result of conversion. • Advantage of occupying and settling: why does he have a right to come over there? "What right have I to go live in the heathens' country?" • You can better yourself by going over to America; solve a lot of unemployment problems; lots of land they are not using. • Kind of like adverse possession. • Also like John Locke: if you take things and make good use of it, it belongs to you. Locke was an advisor to the crown. • Hakylut: o Commissioned this as memorandum to Queen Elizabeth I regarding the importance of colonization, known as "planting" in his time. o Explained that colonies would provide raw materials and a market for English goods. o Also stressed that the English had a responsibility to convert and enlighten the natives through Protestant Christianity. o Plant people like on plantations to legitimize your use of the land; and reasons to leave England

State Holding Company Legislative Charters

Especially railroads. Very hard to get through the legislature By the time you explained to the legislature why you needed it, it had becomet pretty clear that the whole point was to monopolize the business. - the state would allow the corporation to hold the stocks of other companies.

New Negro Alliance v. Sanitary Grocery Co. (1938)

Grocery and department stores were not hiring black workers or were firing them in exchange for white workers. African Americans picket the stores to protest this practice Sanitary Grocery argues that it is unconstitutional to picket like this. HELD: The Court says that these boycotts are permitted by the Constitution. indirect right to peacefully demonstrate

o Letters Patent to John Cabot (1496)

Henry VII gave to John Cabot - delegated authority from the crown Cabot given all land unknown to Christians Power to subdue, occupy and possess give 1/5 to king English less interested in conversion

o Korematsu (1944)

Hundreds of thousands of Asian-Americans forced to leave their homes in the west and sent to internment camps. MAJORITY: War powers of the government require great deference to the government and the military during a time of war. • Although Korematsu was an American citizen, who is loyal to the United States, he is not guaranteed the rights just by virtue of his citizenship. • Race turns out to matter more than citizenship because it is not the Court's business to interfere with properly decided matters of socio-economic issues, doesn't matter this might have been based on race FRANKFURTER: It's just not our business to interfere here, even though we don't agree with the action. MURPHY: This is countenancing the legalization of racism • on the side of rights; calls it racism; disagrees on deferring this time • Perhaps deference on a type of weapon, but this does not warrant military deference • Murphy: democratic life requires no racial discrimination; that is how you define a democracy • • Important because there is a line from this opinion, to Oyama, to Brown.

What rights? Incorporation, Oyama, and communism

In many ways, Oyama shows where people are going 6 years later in Brown. o Communism pushed the Court back first, however. McCarthy charges that there are communists in the state department. People imagined what communism looked like and they related it to radical Jews, Blacks, Catholics

How does Brebeuf describe the Huron? What do his perceptions suggest about his own worldview?

Jesuits wrote back to France about the Hurons Hurons not uncivilized - have an elders counsel to decide He speaks somewhat complimentary of the Huron, but still ranks them lower than completely civilized nations, such as those of the Far East. He says that the Huron are not completely without laws, they hold assemblies, and punish some forms of crime and support the victims of crime. Jesuit; killed by the Iroquois in Canada; thought Indians were primitive Noted they were well organized, everyone had a right to speak Saw them as lawful, but below Europeans in hierarchy around the globe Very participatory government with a council, political structure; like Europe, w/o king Living with the Huron; he is part of a group that becomes known as the Jesuit martyrs - people executed/died during controversial missionary work. Comparing the Hurons to other cultures. Aspects of Huron government - system of crime and punishment; representative legal system; some notion of hierarchy within it. System of government in France, when Brebeuf is writing: absolute monarchy. Not a lot of voice in govt; not a lot of rights to have an opinion. So this is also a critique of French culture, under the guise of just making observations. So, it is hard to know how accurate the observations are - the are serving another purpose for him. Set of assumptions right at the beginning - our Savages are not at the level with Chinese etc. perfectly civilized, but above the conditions of beasts. • Hierarchy: viewing the world as a hierarchy of people - what are the consequences of that? • makes it easier to think less of the people below you on the hierarchy - creates inherent ways of thinking of inequality • easier to justify paternalism, taking care of the people below you

How does Adario see the French?

Lahontan is the voice of Adario here. Says that the French lack self-fulfillment. No sense of moral compass; all about whether you will be thrown in jail, etc. Critique of French culture. French are enslaved by their government. Adario is playing the role of a removed outsider, able to criticize the French society Lahontan isn't willing to put this dissent in his own words because he could be rebuffed back in France Adario criticizes the French for not being able to act in the good on their own, but that they have to rely on laws in order to make people do good. Generally critical of the French, saying they are not free; through Adario Says French don't act well on their own, but instead rely on laws Criticizes European world, tribes are own masters

o Richard Haklut "Discourse on Western Planting" (1584)

Memo to Queen Elizabeth Colonies would provide raw materials and market - focus on econ enrichment Secular reason for occupation

Hiawatha

Mohawk tribe; formed a Confederacy with 5 other tribes in upstate NY; through a series of annual confederation meetings, basically stabilized that entire region and stopped a lot of disputes between the tribes. When 18th century comes around, and Ben Franklin and people become interested in confederacies, they talk a lot about the Iroquois Confederacy.

What arguments does Paine make to justify independence and revolution? Is independence legitimate or illegitimate?

Monarchy unnatural Reconciliation would hurt America Government is a necessary evil Something very absurd about a continent to be perpetually governed by an island In America the law is king Government designed to protect your liberties - once it's not doing that it is no longer a government o Very radical for the time - claims that it is absurd to have a King, which at the time, was an absurd idea in itself. o The time for debate has gone by, so he advocates taking up arms against the British. We've tried everything to reconcile with Britain. o Manifest Destiny Ideal: "The cause of America is, in a great measure, the cause of all mankind." America, a huge continent with many resources, should not be ruled by a tiny island. Unified: Shows that he is thinking of America as a continent and not individual colonies with their own distinct interests.

Communism (1951)

National paranoia that people who were advocating the violent overthrow of the US had become persuasive and powerful. American society would be destroyed despite having won the war. That is how people like McCarthy understand it. US begins to prosecute, both at state and federal levels, leaders of Communist party USA. When Smith Act cases go up (most famous ;Dennis v US) - under argument, does the 1A protect the leaders of Communist party - Court upholds all of the convictions. This is fine; legislative majorities have the right to pass the Smith Act. • Frankfurter concurs a lot: all about balance. • Black and Douglass: write same dissent all the time. In the late 1940s and early 50s, Communist party is understood not the way we think it is from Reagan era communism. Understood as being behind many issues involving civil rights. Many of top leaders of Communist party USA are African American leaders; see it as end to racial discrimination. Not understood so much as links to Russia, as people who are against US. Scottsboro boys are defended not by NAACP or ACLU, but by Communist parties Defense Fund. See case as about whether US promises rights to everybody.

Oyama v. California (1948)

Oyama is forced to move to one of the internment camps during the war. They come back at the end, and have no ability to get their land back. Vinson writes this opinion in this case - he also died right before Brown was to be reargued and so this case is what Brown could have looked like. HELD: The Court holds that the burden on Oyama was racially discriminatory in violation of the Constitution, but the law itself was left alone and not held to be unconstitutional. • There are, actually, Alien Land Laws on the books today. BLACK AND DOUGLAS come of age in this moment. The dissent in a very loud voice. MURPHY also dissents. • History really matters here. The background to this law is that people were acting on racial biases.

o Palko v. Connecticut (1937)

Palka stole a record player from a store and killed two police officers in the process. Conviction for second degree murder, but state appealed and got first degree murder. Palka argued that this violated the Double Jeopardy Clause Cardozo argues that only the very essence of a scheme of ordered liberty are incorporated against the state. HELD: Thus, double jeopardy is not so important here, so it is not incorporated against the states in 1937.

Alien Land Laws, at state level:

Piggyback on the fact that at the state level, people from southeast Asian countries are not allowed to naturalize. ALL say, if you are not eligible for citizenship, you cannot own land. So the states begin to take away rights to own land; upheld by SCOTUS in 1922.

How does the Treaty of Tordesillas describe its grant of authority? What is the role of "discovery" in the Treaty of Tordesillas?

1. Treaty of Tordesillas (1494): Pope gave them the power to divide up the world. • That is why Brazil speaks Portuguese, and the rest of South America speaks Spanish. • The Portuguese do not realize what a bad deal they got with the division, because they thought the continent might extend the other way. • Notion of delegation: Pope can delegate authority to Christian princes, whoc an then delegate it to people who are searching - the Pope's authority to claim land. • What this does in terms of Spanish and Portuguese exploration is it leads to a series of practices relating to discovery - very different from the way the English go about it. • Crazy debate about whether Spanish were worse than English to NA population - everyone was awful; who was worse is not useful. But the Span and Port proceeded differently, because they went under the theory of conversion and bringing goods back - not as interested in staying permanently. They still enslaved indigenous population; wiped out the population in modern-day Haiti; but they do not occupy it, because the theory they are proceeding under does not emphasize occupation. It is sufficient that you are Christian and landing somewhere other Christians do not own. They started, as they sailed up to the coast line, they would have someone read a set of rules and laws - are you willing to be converted - if we don't hear anything, we are assuming yes. And then they would just proceed. Because people had to be "notified" that they were being converted. This was the S/P approach for South America, up through Mexico, up to Florida. 2. Pope draws line of known New World; Portugal gets Brazil because of this 3. Focus on conversion, not occupation; Spanish didn't settle; diseases wiped out empires 4. Draws a line down the middle of the globe (how it looked at that time) and gives Portugal the land to the east and Spain the land to the west 5. Thus, Brazil, today, is Portugese 6. In order to get more land, you have to say that you discover the land in the name of the Pope and your King and as against other European countries (and not those people who were already there)

What images of lawyers appear in the early 19th century? How are these images different from earlier images?

After high-water mark of lawyers during founding period, a lot of negative views; w specific interests Blamed for societal dysfunction, as leaders are lawyers and part of the dysfunction; lawyers advocating Belief lawyers are motivated by money and self-perpetuation; pass complicated laws to get a lawyer Lawyers are anti-democratic; rather have it Republican where normal people don't have a say Frederick Robinson: Oration: self-perpetuating and aristocracy; sense of pervasive suspicion

Who is Bartleby? Is he a "lawyer"?

Bartleby: comes in, ideal employee; works day and night; doesn't complain

Ronald Reagan, Farewell Address to the Nation, January 11, 1989

Common man for the people; America has economically recovered, now a bastion of freedom Defines American democracy as freedom, but freedom of people from the Government Nixon believed in Government regulation; Reagan likes Government out of the way Pro-immigration; rebirth of patriotism; many movie references; talking to the older generation Mentions a city on the hill • Successes o Economic Recovery Deregulation helped to spur this onward. Reagan understanding of economic regulation was that the idea of the New Deal that regulation would allow the ebbs and flows of the economy could be blunted by regulation. o Morale Recovery o World Peace Collapse of Communism • During the Reagan years and before, the world had been divided into two camps - those nations aligned with the Soviets and those aligned with the Americans. • Citizen Politician o The problem with the country is that people aren't patriotic and they aren't taught to be nationalistic. o That's why he got into politics, to bring this morality and simplicity back to America. o Associates "American" with "FREEDOM". o At the end, Reagan sees America as the City on the Hill, just like the Pilgrims. He sees it as stronger than when he came in but also welcoming to those who want to come together. This is still the moment when America is welcoming to the tired, the poor, the downtrodden.

Two models of Delegated Authority:

Corporation and Feudal Proprietary

Fred Rodell, "Goodbye to Law Reviews" (1936)

Critique; no practical benefit to law; criticizes style; boring, abstract; footnotes are bad; modern LR is about self-perpetuating organizations (enjoy the notes ); benefits students and professors No longer about finding the deep truth of the law; just an institution where people want jobs

Twenty-fourth Amendment (1964)

Ending poll taxes

Types of law books

English Treatises and Abridgements (of cases and statutes) Nobody wanted to read cases by themselves, so better to read the treatise. Very clear; you could read one and go be a lawyer in 1728. English Law Dictionaries if you know what the words mean, you are fine, on many topics. English Practice Manuals told you how to practice. How to write the procedures, what should you do next. What forms to file in what order. English Case Reports American Statutes early on, Americans began to publish statutes. American Justice of the Peace nad Practice Manuals people who are not trained as lawyers can find, in alphabetical order, all the things they need to know. In the reader, she put all things related to "sheep." American Case Reports (after 1789) beginning of Supreme Court types of reporters. Rise of that in 19th century. American Treatises the last thing to develop. Joseph Story, Sup Ct justice, tries to make money writing American treatises.

What do the Married Women's Property Acts alter?

First step to ending coverture; can keep property while they are married in their own names Mississippi first; odd, but it is a debt issue; husband can have debt and not lose property Gives married women independence; significantly helps men; now, women can make wills • Change the way women are seen. • Acts: begin to destroy coverture. Say women can keep in their own names property they bring to marriage; can be given property in marriage; implicit in that is ability to sue. • The begin to have economic control, and families can give them economic control. • Begins to undercut the notion that married women are dead at law. • These are NOT equality for women. They follow major economic depressions. • 4/5 provisions in Mississippi Act involve people as property. • In Miss, if husband had everything in his name and ran up debts, you lost the whole plantation, including people held as property. If the H runs up debts, but plantation is in wife's name, the plantation does not go away. • In increasingly up and down economy, allows the family to preserve assets by dividing them into two piles, women not subject to debts. • But does begin to disassemble coverture. • Extremely important in run up to Seneca Falls. Began to persuade people that change was possible.

pooling agreements

First thing they do:- people would pool their money in a venture. The minute the economy went down, however, people began quickly pulling their money out.

Self-Emancipation via the Military

Lincoln is slow; Congress and Generals push him; Generals write that slaves coming into the lines Generals unsure how to use them; question of legal status; Generals needed them militarily Generals believed that once slaves reached the line, they were free; many of them were lawyers General Butler: does not see slaves as fugitives; wants to arm them on the Union side Sees former slaves as good workers; does not compare them to white soldiers Congress eventually offers freedom for military service; generals think it is the right thing to do People freed themselves making it to the line; March 1862, can't turn slaves back; de facto freedom Lincoln toys with colonization, compensated emancipation; Militia act of 1862: if you fight, family free o General Scott is worried about allowing slaves to join the ranks. He says that he will accept families being freed, but has a hard time making any use of the children. o General Butler wants to conscript the slaves. Disputes that the slaves are fugitives - the real fugitives are the white rebel slave owners. Doesn't see why there is an issue with arming the slaves on the side of the Union. He accepts that the slaves are good workers - same characteristics as slaves - compared to the way that the British used locals as soldiers in their colonies. - does not compare them to the white soldiers. o The Union Army became a way for people to free themselves. Slaves escape toward the armies and the armies were forced to accept them.

Cotton Gin

Little box to separate cotton seeds out; before, labor intensive; now, can grow the easiest cotton Creates the rise of the southern slave economy; doubles cotton production every ten years

Bradwell v. Illinois (1873)

Privileges and Immunities Clause does not give women the right to enter the bar; no right to vocation Bradley concurrence: never write this; law is male, not made for women; subservient to husbands Destiny to get married and not become a lawyer; total wrong side of history; slaughterhouse time Women are delicate and timid; paternalistic; crazy idea that the law is strenuous; quite sedentary Keep women in the home; that is the way of God/the world; still issues of paternity leave This is the Supreme Court; you don't write opinions like this if you are the only one believing it o ISSUE: Does the Privileges and Immunities Clause preserve for women the right to be admitted to the bar? o HELD: There is no right to a certain vocation, even if one has obtained the requisite qualifications for that position. Doesn't help that allowing Bradwell to be a lawyer would also create precedent for African Americans to be a lawyer. o Slaughter House, decided around this same time makes it clear that the Court was worried about extending privileges to other classes of people than white men. o BRADLEY CONCURRENCE: Law is a male profession, and its just not made out for women. Women are conflicted when it comes to being a lawyer, because they are subservient to their husbands, etc. • Even though married women's property acts have basically destroyed the practice of coverture. Single women are an exception to the general rule, but their destiny is to get married and not to become a lawyer - nature dictates otherwise. o You will be remembered in history. You ought to be sure that you are on the right side of justice if you're going to be so outspoken about your thoughts on the law of nature, as Bradley was here.

Seneca Falls and Women's reform movements

Seneca Falls - The Declaration of Sentiments and Resolutions • First question is whether men should be present. o At first, they say no, but then realize that they do not know how to run a meeting • The second question is how to write the document. o They follow the lead of the Declaration of Independence. • Why should we not have the vote where even idiot and (immigrant) men have that right. • Women started wearing pants, sort of, eventually what would become bloomers- radical statement. • Seneca Falls - radical but also conservative. • The women were radicals, but all got together and no one wanted to get up and speak; did not want to run the meeting. Many will not speak out loud. • What do women want? • A lot about employment. • In the beginning, umbrella of women's rights movement is a lot broader. In push for the vote, a lot of those get lost. • A lot of concern about religious organizations, being barred from authority. • Education, property rights, voting. • The vote was the only one not unanimously passed - too radical for many of the people at SF. The most controversial. • Only one of the women lived long enough to cash vote in 1920.

Lincoln's Death

Shot April 14, 1865 by Booth; feared African American citizenship; close to Good Friday Frederick Douglass: notes that he was the white man's President; always put union first; died for slavery

How are suffrage statutes changing? In what ways is property ownership linked to suffrage? In what ways is it being delinked? How might changes in suffrage statutes alter the understanding of who can participate in American politics?

Suffrage property requirements go away during this period and explicit disenfranchisement arises - women, people of color, paupers, convicts, cannot vote. • New England is the only place in the mid 1800s that does not have color-based voting. • All of the new states in the west have this type of voting. • More property to more people; more voters, which shifts theory and leads to suffrage statutes • Have to be male, 21, property, and a resident; then you just need to pay taxes (income ok) • Land is irrelevant, but you still need to be a free white male; includes race and gender • Exclusions: paupers (don't pay taxes), felons, women, non-whites; by 1860: only NE allows blacks to vote • The expansion of a market economy shifts the notion of who belongs, and voting depends on looks

Minor case:

Supreme Court says in a unanimous opinion that there is no right to vote just because you are a citizen. The privileges and immunities clause does not include the right to vote.

Sugar Act of 1764

Tax on sugar was 6 pence; dropped it to 3 and enforce it, so no more bribes

Historiography of "origins" of American slavery

The way that slavery/indentured servitude has been told differently over time. • In the post-reconstruction period, people took it for granted that slavery had been a way to help people who came from a lesser civilization. o Racial inferiority was considered a given • Ulrich Phillips: 1918; thought people superior + inferior; racist today; segregation a dominant structure • 1940s: Slowly moving toward integration, but still confused. • The Brown Era: Will Brown solve America's race problem? o Oscar Handlin: slavery made people racist, so if we get rid of the remnants of slavery, people won't be racist anymore. o Carl Degler: Slavery is a result of racism and not the other way around. o Handlin thought Brown would solve the problem; Degler did not. • 1970s: o Winthrop Jordan falls somewhere in between. There was prejudice to begin with. When we adopted slavery, we instilled our nation with legal racism and so it became ensconced. o Slavery and racism were mutually reinforcing • Late 20th Century o John Hope Franklin, Deborah Gray White, Thomas J. Davis. o Agency: even within a system as tightly bound as slavery, people tried to maintain family relationships and confront the issue of slavery. o People shape their own destinies to the extent capable within that structure. o Race as constructive. Race does not exist in a stagnant, inherent way. Rather, it is formulated by the things that people associate with race. today: sense of whiteness as a privilege

What are the possible meanings of "I prefer not"?

Then, I'd prefer not; given work without looking up; rude, presumptuous, hierarchical, impersonal By saying I'd rather not, it doesn't inherently recognize his authority; still, keeps Bartleby on As a charity; implies that he doesn't really care about other people; lawyers important on Wall Street Can't get rid of Bartleby, eventually moves; Bartleby dies in the tombs after removed from building

Papal Bull / Doctrine of discovery:

Through a Papal Bull, and a notion of how you claim land (doctrine of discovery): if the land is not occupied by Christians, it is yours to claim. Under the power of the papacy, Christians have the right to try to convert people to Christianity. • Notion of delegation: Pope can delegate authority to Christian princes, who can then delegate it to people who are searching - the Pope's authority to claim land. • Degrades who and what was here before the Europeans • Paints a picture of everyone getting along - no strife • Speaking in the "we" voice makes it seem like white Europeans are all there is. • Many people don't even fit into the narrative - • Example: those who signed the Mayflower Compact who were not Pilgrims and did not agree with the religious doctrine • Example: Those or who were not asked to participate (women, children, servants)

Early dominance of indentured servitude over slavery

Why was indentured servitude dominant at first? • Servant is not a "bad" status as we might think of it today. o Basically, it is a way of moving unemployed people into a vocation. • They tried enslaving Native Americans from various tribes in New England. o People just ran away, however, and they were hard to keep track of. o Became unfeasible. • The English were not participants in the slave trade out of Africa because their navy was not yet strong enough. • In England, lots of people were servants. It was a common, accepted part of English structure. • In England, too much land and insufficient labor. In the colonies, lots of land but very little labor. • Native American slavery: • To maintain a system of coercive power, you need to not have a lot of escape options. People would just escape to the next tribe. • So they returned to indentured servitude. • 2/3 of the people who come, who are white, come indentured. The major way that people came to the colonies. Outside of New England, most people came this way. • These are not the people we are conscious of; we tell history from the point of view of rich people. • Most people did not have money to pay for passage and came as indentured servants. • People convicted of crimes in England were sent. Also, they were sent to Australia. •

Background to witchcraft - Political Instability

Witch hunts derived from a world in which the people could not scientifically rationalize what they saw as odd. • Largest single incident of prosecution/largest trial record • Last time that anyone was executed in America for being a witch. • Political Instability: Transition to Royal Colonies o King Philip's War Incredibly violent war between some of the tribes and the English and some other tribes War ends in 1670, with death tolls very high on both sides Some of the people at Salem had been involved in this war. o Loss of charters King Charles revokes Mass charter in 1684 King James tries to revoke Connecticut charter in 1688, but fails in doing so when the assembly hides it from the commissioners. Governor of New England (Andros) goes to England to try to get a new charter in the late 1680s. During this time, Salem erupts. In general, the political authority has completely fallen apart at the time of Salem • Salem happens against a background of instability. New Englanders felt like they were under siege. All sorts of things happening. • Like when everyone was afraid they would get ebola and not get on airplanes. Whole country/culture suddenly feels vulnerable.

Change in Marriage

With the shift in the market based economy and revolution comes independence, liberty, equality Trans-Atlantic; becomes Romantic; marriage is about falling in love; feelings about another matters Affective (love) and companion searching; beyond just economic bonds and not starving Marriage becomes less hierarchical; more private; state less involved; marital rape questioned

o 19th Amendment

Women's Vote Women's right to vote; reconfigures women's role, who is a citizen; broaden who Gov represents

How is the Cherokee Constitution similar to the US Constitution? How is it different?

o Similarities with the US Constitution 3 branches of government bicameral legislature Powers of Congress: taxation, necessary and proper System of Courts. • Three branches of government; bicameralism; Bill of Rights, other rights intact; written o Differences Strong, explicitly religious vein - must not denounce God in order to hold office. • A way to build a political alliance with the religious community in America Property rights are held in common by the nation and no one can sell the land outside of the nation. • Individuals own improvements on the land, but not the land. First Article, most important thing, is the territorial land of the Cherokee Nation. • US Constitution has no territorial boundaries - doesn't really matter for US. Treaties are the supreme law of the land. • In the US, treaties are more complicated, less recognized as highly important. Racial delineations • Omitting from coverage those that are of African descent. • : judiciary age limit from 30-70; include religion and rights; some separation of church + state • Need some religious worship as a soft requirement for office; defines territorial bounds; odd • Executive visit to each area of the nation every two years; Principle Chief elected by Council • Education a big deal, more like states; African Americans are not members of the tribe • GA calls it presumptuous; gets aggressive

Married Women's Property Acts (1842-1887)

o State legislatures begin to rescind the coverture doctrine. o The first one is in Mississippi. Thus, in economic panics, men could transfer their slaves to their wives. o Once women can own property within the marriage, they can create their own independence much more freely.

Annie Davis Letter (1864)

o Still not sure if she is free before the amendment, because the border states still have slavery.

Dawes Act (1898)The Limits of Federal Citizenship: The Beginning of the End of Reconstruction

o Takes the tribal lands, allots them to individual members of the tribes. o Makes those accepting members citizens, and erases the tribes eventually. o Destroyed economic and political identity o Controversial still; membership in the Cherokee tribe is determined based on whether your name was on the Dawes act

• Wealth of Nations - Adam Smith - 1776

o The American economy becomes essential to the British during this tumultuous period. o They gained a better understanding of the use of the colony. o Colonies are good for sending raw materials back and buying the products of those colonies. o The way that a nation handles its colonies is important to the mother nation's economic health

Incorporation of the Amendments

o The Court had previously said that the 14th Amendment did not apply the bill of rights against the sates o Before Taft's tenure, the Court applied the 5th Amendment against the states, but stopped there. o Under Taft, however, through the Due Process Clause, the Bill of Rights is applied against the states.

Yick Wo v. Hopkins (1886)

o The Supreme Court says that the equal protection clause applies to Chinese people o By the time Yick Wo is decided, the case is meaningless because Chinese people are completely outlawed from entering the country. o The real issue is whether the Children born here are US Citizens.

Why does Melville place his short story in a law office? Why is the narrator a lawyer as opposed to some other occupation? What does law symbolize for the narrator? For Melville?

o The lawyer, who thinks he is being magnanimous is actually just overlooking the actual needs of his employees o The lawyer expects confrontation and can't deal with non-confrontation that Bartleby shows him. o Lawyers are blind to the people around them and the people upon whom their business is dependent.

Regulate democratic processes - the Court after 1937

o The thought was that if we protect the processes by which legislation gets passed, we will protect our democracy o Did not, however, want to interfere with socio-economic legislation by substituting their own opinions.

Lochner v. New York (1905) & (Hammer v. Dagenhart)

o There is a right to labor and contract in the Constitution and any legislation that limits the workday to 8 hours interferes with this right. o Assumes that labor and management are on an even playing field in bargaining for the terms of employment. o HARLAN DISSENT: it is completely inaccurate to describe the system as having labor and management on a level field.

• Parades, Pickets, Hunger Strikes

o These organizations organize parades, pickets of the White House right around Woodrow Wilson's 1913 inauguration. o Many people are willing to go on hunger strikes. o Moreover, there were people working hard behind the scenes.

Governmental Structure of Corporation:

o Trading companies big in this period. o Governmental structure of the corporation: o Charter from crown grants authority o Officers: o Governor - like CEO o Deputy Governor - assistant to the CEO o Assistants - counselors who help the governor o Freemen: own shares and elect officers o Meeting: General Court - shareholders' meeting. o This dates to the late 1500s. Looks a lot like our government. Head of state govts is governor. Name of Mass Legislature is still The General Court of Massachusetts.

Homestead Act (1862)

o US opens up all the land in the West and allows families to go west, stay on the land and improve it for five years, and then the land will be yours on applying for a deed. o Statute is not limited only to men, but also to women as heads of households and single people over 21. Up to 20% of homesteads were issued to single women. • gender neutral way to get land; 20% single women; alternative to marriage

• Variety of Governance Practices

o Virginia Company (1621) Set up counsel in London and in VA VA council sets up House of Burgesses in 1619 - bicameral Crown tried to take back charter, but House of Burgesses ignored o Massachusetts Bay Company Not separatists Corporate charter did not say that it had to have physical residency in England, so Mass. Became independent commonwealth John Winthrop, Model of Christian Charity (1630): • We shall become a city upon a hill • Poor allow the rich to show mercy Massachusetts Body of Liberties: • Set of rules form 10 commandments • No primogeniture • Limitations on criminal punishment • Right to jruy o Rhode Island Didn't have charter from England Toleration of religion o John Locke, "Fundamental Constitutions of Carolina" Never technically ratified Explicitly authorized slavery, freedom of religion England controlled everything o Maryland Proprietary: Explicit freedom for Catholics

Democracy as individual dignity: 1957-1969

o Warren Court says again and again that democracy means individual dignity. They go on to incorporate 5 of the rights. Decide repeatedly in favor of things that promote dignity, privacy. They focus on discrimination. • Two speeches that are talking to each other: MLK's excerpted speech (so that she does not get sued; fair use); and President Johnson's speech. • What do the amendments really mean - • Beginning of student loans: during Johnson administration, in large part bc of push toward ... student loans become available. Because poverty is a huge problem. You have to make sure everybody by race and by income can be educated. • This will become war on poverty. Enormous expansion of rights wrt race, pushed by MLK; moving beyond that, to issues of poverty and economic disadvanage. Significant for mexican Americans in the West, where LBJ is fro. • Decision after decision upholds individual dignity; uses that term wrt what democracy means. • Incorporates the BOR; all but 5. • Go on to decide to uphold the equal pay act, 1964 civil rights act, fair housing act, voting rights act - all sorts of ideas where democracy does not mean deference to majority. Means things that allow individuals to paticipate in democracy.

Larger Question: What does it mean to end slavery?

o Was slavery just the legal relationship of property ownership of something else? o Was slavery something more, a larger notion of a caste system that just happened to grow up around that legal property right idea? o Did it mean only that we had to allow people to be "citizens," but not trying to define that term beyond the legal definition? o Or, did it mean something about greater equality? o How do we view America as a place? Is it the soaring ideal of a free nation, complete equality? Or is it just changing the language of a caste system?

C.C. Langdell, A Summary of the Law of Contracts (1880)

o Writing about the Mailbox Rule o He claims that the question has been misunderstood, disclaims many cases that he claims are not on point. o Developed the modern mode of legal study promoting case law research Believed you could find a deep science to the common law - drawing a thread through all of the cases. • Revolutionary; thought of law as science; wanted it three years; salaried professors; Socratic • Created the modern casebook; goes through cases to pick apart the inherent meaning • Question each sentence in a case; believes there is a true answer/science to the law • Socratic method: push the student until they tell the truth; against Mailbox Rule • All about maintaining the status quo; not putting duties on people for innocent bystanders

Madison's Speech in House of Representatives, June 8, 1789

o campaigns for house, promises to write the bill of rights Thinks they should apply to states Tries to write in simple, general language 1st are 12 amendments, 1st two not ratified (about salaries)

Roosevelt beats Hoover:

o wins in urban centers; wins AA votes; wins deep into the North in terms of certain types of middle class voters. Wins everywhere but New England. o Had polio in 1921; very much part of world that people understand about Roosevelt. Basically incapable of walking. o Master campaigner; on campaign, talked about Lincoln all the time. Completely confuses everyone; absorbs Lincoln into the Democratic party. Every year, Republicans try to get Lincoln back and compare themselves to Lincoln; does not work. Roosevelt stole him away.

the Tender Years doctrine

o young children belong with the mother because the mother is best suited to formulate the children at this time of their life. o Men, on the other hand, are naturally unfit for the job as well as being unfit for reason of their avocations.

How does Phillis Wheatley describe George Washington? What does the poem suggest about ongoing transformations over the nature of authority?

slave, can see idea of freedom even though she can't participate o Aspects of the poem speak of an older world Written in a classical sense, references classical gods and goddesses. Acceptance of race as a defining characteristic in society. She thinks Washington should to be a King - crown, mansion, throne. Ideal leader is still thought of as above the common people. • Poem about George Washington; sounds royal; different than his excellency; fight for freedom • Ironic as a slave; grew up in Boston, moved to England where free; thinks Washington should be King • Says the crown took too long to reign in the colonists; ideal leader still thought above the commoners • Americans feel God is always on their side, looks on them favorably - still, it is on our money. • Poem refers to Washington as "his excellency" and says he will get "A crown, a mansion, and a throne" - took decades to stop referring to the President like a king. Now we call him Mr. President. He got the mansion, but not crown or throne. • The executive looks a lot like a king / monarch. Idea was an elected type of monarchy. • Was hard to work out how to have a strong executive who was not a king. Was the meaning of "king" having power, or being born into it? • Wheatley was African American; seemed to recognize the irony of a world that is all about liberty, while still having slavery.

The delegates

• "An Assembly of Demigods" (did he mean Demagogues?) • Depictions of Convention seem to imply there were a larger number of people there. gives more legitimacy. • Most had some legal training; many had fought in war, so military aspect of govt is important; many had served as Governor. Bring national political experience; in some ways, biased toward national concerns. Others would have been biased toward local issues, but they did not show up. • Not Present: John Adams (was in London); Thomas Jefferson (ambassador to Paris). They believe they are in the more important place; do not realize that the Convention will so fundamentally shape society. Adams will return for MA ratification; Jefferson misses the entire thing - Annapolis, Philadelphia, ratification. • Jefferson comes to the Constitution as a reader. All his opinion about how the Constitution should be understood came as an outsider. • Washington was there. he was the Commander in chief of the army at age 43; considered very important. Everyone thought the Convention would fail without him. He believed in the need for national govt. he gave legitimacy by his presence. • Benjamin Franklin: from Revolutionary generation. Will not walk to Convention hall; must be carried. Always has suggestions about things that everyone else has moved past. For ex, thinks none of the people serving in the govt should be paid - that is the Revolutionary spirit. Should all be out of goodness of hearts. He is still very important - was president of PA anti-slavery association. • James Wilson: Professor Sup Ct Justice; born in Scotland; land speculator; imprisoned for debt (later). At Convention, speaks about separation of powers. • Gouverneur Morris: lost leg in carriage accident, but people claimed he had lost it jumping out of window to escape someone's husband. Speaks out most strongly against slavery. • Alexander Hamilton: leaves for much of the Convention and comes back. He is still very controversial. • William Paterson and Oliver Ellsworth: from small states; important in pushing for small state representation. • James Madison: goes down in history as being very important. • Most of the things he cares about lose at the Convention. But he takes very good notes of the Convention. Because of those notes, becomes our eyes. • Short and small; good student; unlucky with romance; poor public speaker; shy - she thinks people project own lives onto Madison and identify with him. He was super young looking.

Queen Elizabeth

• (Protestant): Daughter of Henry VIII and Ann Boleyn Henry forms the Church of England - basically the church as it was, but without the Pope; King is the head of the church. By the time she comes into power, England is a powerful nation state, and Spain is the archenemy; Elizabeth wants to beat Spain. Portug has shrunken down a bit. • Focus on occupation

The Twelve Amendments (1789-91)

• 12 Articles passed by Congress 9/25/1798 • Ten ratified 12/15/1791. • Only 10 were ratified, making the 3rd amendment the 1st amendment.

Georgia Protest (1739)

• 12/9/1738: some residents of Savannah, Georgia, petitioned the trustees of the colony to repeal the law prohibiting slavery in GA. They thought that such an action, combined with the grant of a free fee simple title to their land, would further the colony's prosperity. • The original 1735 law appears to have been based on fear that allowing slaves in the colon would incite revolt and serve as a disincentive against settling of whites. • In 1739, Scots from Darien, GA wrote a petition to Governor James Oglethorpe advocating against the repeal of the law. • While the opponents of slavery succeeded in keeping the law in the books for the time being, it was largely ignored and was ultimately overturned in 1749, an act paving the way for slavery to grow in GA.

Georgia Protest (1739)

Treaty of Tordesillas

• 1494 • After Columbus returned to Europe in 1493, Spain and Portugal entered into negotiations with Pope Alexander VI about a line of demarcation. • That year, papal bulls gave Portugal rights of the land east of a line one hundred leagues west of the Cape Verde Islands, and Spain the rights to the west. • Treaty of Tordesillas moved the line further west. • Resulted in Portugal's claim over modern-day Brazil.

Letters Patent to John Cabot

• 1496 • In the 1480s, Giovanni Caboto moved from Italy to England. • In 1496, Henry VII gave him a letters patent, which delegated authority from the Crown to him. • First attempt failed. In 1497, Caboto landed somewhere in North America, probably between Maine and Newfoundland.

Richard Hakylut, "Discourse of Western Planting"

• 1584 • Hakluyt: English geographer who wrote on and promoted exploration of the New World. • Commissioned this as memorandum to Queen Elizabeth I regarding the importance of colonization, known as "planting" in his time. • Explained that colonies would provide raw materials and a market for English goods. • Also stressed that the English had a responsibility to convert and enlighten the natives through Protestant Christianity. • Confidential state paper written for the Crown and not discovered until 1877.

Patent to Sir Walter Raleigh

• 1584 • Raleigh obtained a letters patent for his effort to settle Roanoke Island. • In 1587, over 100 settled in Roanoke. • By 1590, when a relief effort arrived, the settlement had vanished.

Political Participation

• 16 black Representatives serve in Congress during reconstruction, 2 Senators. • The next African American senator is in 1960s. • Only this year was a black elected to the Senate from a southern state.

William Shakespeare, The Tempest

• 1610 • Written against the backdrop of English exploration of North America. • Shipwreck in play likely based on wreck of the Sea Venture in Bermuda in 1609. Ship was sailed by the Virginia Company and bound for the new Jamestown settlement.

Timeline for Virginia

• 1619: locals for assembly to solve problems. House of Burgesses • 1621: Company approves general assembly and council of state. approves the House started in 1619. • Virginia Company bankrupt • 1624 King revokes charter • Virginia becomes a Royal Colony

An Ordinance and Constitution of Treasurer and Company in England for a Council and Assembly in Virginia

• 1621 • Document established relations between the governing authorities separated by the Atlantic. • Virginia Company was organized and then reorganized by 3 charters in 1606, 1609 and 1612. By 1618, Company decided to delegate some authority to a local council and assembly. In July 1619, an assembly met in Jamestown. o They create what becomes a House of Representatives.

The Massachusetts Body of Liberties

• 1641 • The result of the meeting of committees for the purpose of "making a draught of such laws as they shall judge needefull for the well ordering of this plantacion, and to present the same to the Court." • Composed largely by Nathaniel Ward, a lawyer and minister. • Contained provisions relating to liberties of women, children, servants, and foreigners. • Further included sections relating to judicial proceedings and the amendment process. • Most clauses were adopted into the Laws and Liberties of Massachusetts, passed in 1648. • Mary Dyer and the Quakers Executed Mary Dyer under the body of liberties. • We think of some of these laws as fairly progressive for the time. • Torture - acceptable in some limited circumstances, but broadly proscribed. May also torture them as long as it is not inhumane, barbarous, or cruel. Different types of torture. o Some familiarity for inheritance; some unusual: can only be legitimately struck by husband; progressive o No torture, unless already convicted of murder and there are co-conspirators o No slavery, unless you voluntarily sell yourself or are captured as a prisoner; criminal bible sections o More death sentences than in England; homosexuality and adultery and bestiality o English think these people are crazy and out of control; try and get their charter back

John Winthrop, "Little Speech on Liberty"

• 1645 • In 1645, group from a church in Hingham, MA accused John Winthrop of exceeding the bounds of his authority as magistrate (what we might think of as a senator) under Governor Thomas Dudley. The magistrates had a negative - veto - over legislation. • This oration was at the conclusion of a public hearing regarding the congregationalists' assertions. • The speech further describes his beliefs on liberty and its relation to God

John Locke, Fundamental Constitutions of Carolina

• 1669 • Locke served as secretary to Lord Ashley, Earl of Shaftesbury, and his colleagues, who together were the proprietors of the colony of Carolina. • Locke is thought to have drafted parts of Carolina's Fundamental Constitutions. • Never technically ratified by the Carolina Assembly. • Locke was setting out to write the ideal feudal governmental structure, but also included some cool progressive ideas, such as o Religious freedom o Women's rights to inherit • BUT, legalized slavery explicitly, which they did not in Massachusetts. • This document was never adopted in the colonies - this was just the English ideal for what the colonies should look like. o This, MD, PA, GA, NY, NJ all founded as proprietaries; liked to hire John Locke to write their laws o Very much like a hierarchy; avoids numerous democracy; replaced by eldest son o Must worship (a (Locke)) God to live there; acknowledges Native Americans; 7 can form a religion o Owners have absolute power over negro slaves: first to explicitly legalize race based slavery o Never adopted in the colonies; just an English ideal of what they should look like; assembly instead

Samuel H. Worcester v. Georgia (1832)

• 1830, GA passed an act preventing white persons from residing in Cherokee territory without a license from GA. To obtain a license, one had to take an oath to uphold GA law. • Worcester was a missionary; claimed he was preaching the Gospel with the permission of Cherokees, and that Cherokee were a sovereign nation free from interference with the states, under treaties with the US. • GA Court found Worcester guilty. • Georgia had forced missionaries off state lands • The Cherokee go around asking if missionaries would be willing to break the law. • Sentenced to four years hard labor. • At the Supreme Court, Marshall says that the Cherokee are a Nation under the Constitution. • Thus, because the federal government and not the states may deal with nations, Georgia does not have jurisdiction over the Cherokee here. • In the end, Marshall takes Georgia to task for its actions and says that the Georgia acts are null and void. • The Georgia governor states that he will not follow the Supreme Court's opinion. • Jackson refuses to enforce the opinion and Georgia does not release anyone. • Finally, in 1833, the governor does release them. • This basically tells the Supreme Court that they have no power in this situation and rings the death knell for the Cherokee for their existence in Georgia

Women's Participation in the Law

• 1870: 10 women attorneys in the US; overt exclusion by law • After the war, we have a large push by women to be admitted to the bar. • Bradwell v. Illinois • After this case, women, must argue to be admitted at the state level, rather than the federal level. o Argue that all male words are to be read in a gender neutral way, so the state bar law that allowed "men" to be admitted also should admit women. o Especially true in the West that states were more open to admitting women. Could be because a lot of couples practiced law together. • Federal and Supreme Court eventually opened up to women because parties argued that their counsel (if a woman) was deprived when they went to federal court. • By 1920, there are no gender restrictions on the right to practice law. • Still doesn't mean there were all that many women attorneys and definitely did not mean that there were a lot of African American attorneys

The Philadelphia Convention: Debates - North-South

• 3 large states favor proportional representation. Madison needs to acquire 3 other states to win proportional representation. Then he realizes there are 3 southern states - if he can come up with 3 other states who can favor proportional representation, it will win. So he suggests that you base bicameralism on one house representing all inhabitants, whether or not enslaved, and one house representing only free people. • Would have given a vote for every person they had enslaved. • When he suggests that, everything explodes. Not just question of large and small states; it is question of what role will slavery have going forward.

Oliver Ellsworth, Connecticut Ratification Convention (Jan 7, 1788)

• 3rd Chief Justice of the US Supreme Court. Appointed by President Washington.

Resolutions of the Stamp Act Congress

• 6/8/1765: the MA legislature sent an invitation to the colonial assemblies regarding a meeting in NY. • The purpose of the proposed congress was to petition George III for relief from the Sugar Act and the proposed Stamp Act. No tax without consent, trial by jury, representatives of own choosing • Still very deferential to monarchical authority • A small group of people who had guts, because many were too frightened to put their names on the document. • Violates the right to actual representation that the colonists should have. • Also worried that the courts were completely controlled by the King, and so they didn't even get their day in court

o John Winthrop "Little Speech on Liberty"

The War

• About 3% of the population dies in the war. o The majority of these people die because of disease and wounds, not necessarily the battlefield. o Battlefield casualties are also atrocious, however • The military strategies were similar on each side because the leaders had gone to West Point where they learned that you should always be on the offense and not on the defense. • By 1862, Lincoln is sure that absent intervention, the Northern armies have more people and can withstand a war of attrition.

Henry David Thoreau, "Slavery in Massachusetts" (1854)

• Address delivered at Anti-Slavery Celebration in Framingham, July 4, 1854. • Even in this great state of Massachusetts, you are a slave state. • Anyone who sits there and doesn't actively help escape is abetting slavery. • No longer can the North turn a blind eye, slavery will not fade away - it is actually getting bigger and reversing the notion of America as a free place

Children in 19th century

• Affective individuals • Gradual decline of "bastard" • Beginning of adoption • If born outside marriage previously, bastard; no inheritance; illegitimate; then, closes the options • Can't bastardize a child w annulled marriage; married after child born legitimizes; common law marriage • Adoption statutes; AL first in 1850, MA in 1851; can just adopt the person to legitimize

The Indian Removal Act (1830)

• After bitter debate in Congress and in the public press, Congress passed an act authorizing the president to exchange lands in the West for those held by Indian tribes in any state or territory, and appropriated $500,000 for the purpose. • Enabled President Jackson to proceed with the removal policy and to negotiate removal treaties with the southern tribes. • Passed over vehement dissent. • Federal government to supervise Cherokee lands in exchange for lands held by the US (but not by any state) to the west of the Mississippi. • Feds to supervise land swap w west of the Mississippi

How do the MA judges think they should interpret the state constitution with respect to slavery? What does this decision suggest about comptemporary understandings of a constitution?

• After the 1780 Constitution, the Court says that o Mass law freed him, so he was free. o He never was a slave to begin with because the constitution says that all people are "free and equal." - this language actually means something enforceable, not just high and mighty language.

The Rise of Administrative Law (1938)

• Agencies take on a lot more importance • 1946: Administrative Procedures Act provides a set of rules for these agencies. • In 1946, APA is passed. You turn to process. You back out of things like labor and free contract, and become obsessed with process and procedure. Obsessed with what is a hearing, what is notice, what is comment, what is 30 days.

What is King's vision of the counry and its history?

• All about personal dignity now; conversation shifted; America defaulted on a promissory note • Has given the Negro people a bad check; unfulfilled promise for equality and freedom at abolition

What is the significance of the 1913 - 1933 amendments?

• All of these amendments represent people's belief that government is better able to solve their problems and their acceptance of the national government in that role. Not just during times of war, but at all times.

Adario

• Also known by Huron name, Kondiaronk • 17th century Huron chief. • Traveled widely through NY and Quebec, often on peacekeeping missions to resolve conflicts among the French, the English, and the Iroquois.

The 12th Amendment

• Altered the Constitution's provisions for voting for the President and VP in the wake of the 1800 election in which block voting led to a repeated tie between Aaron Burr and Thomas Jefferson. • Ratified June 15, 1804. • Solves the student group problem; President and VP need to run on the same ballot; two parties • One party controls the executive; get two term presidents without opposition afterward; Virginia

Experimentation with Governance - Massachusetts Bay

• Corporation becomes commonwealth Massachusetts Bay Company o Not separatists o Corporate charter did not say that it had to have physical residency in England, so Mass. Became independent commonwealth o When the company sailed, they took the corporate charter with them and the corporation moved entirely to America. o The corporation eventually transitions to a legislative system o Also a corporation with lawyers; want to do better than Virginia; move the company HQ to MA o Didn't want to follow the Church of England; commonwealth corporation, hence, the commonwealth

Bush v. Gore (2000)

• As a legal matter, the problem was whether a recount should be continued. • The Florida Supreme Court allowed a recount to take place • The Supreme Court placed a stay on the recount and only issued a decision after the time that a recount could have meant anything. • Court's Development o Once the arc of 200 years had brought the Court to its important place in the American society, its deciding elections was not entirely unexpected. • Legal Realism o How much did the justice's politics play into it? • Voting Process o Much of the Court's opinion relied on the fundamental right of one person one vote. • Electoral College Issue o Doesn't really matter who wins the popular vote, but just who wins the electoral majority. Is this method outmoded? • Ramifications o Many predicted that there would be overthrow of the government following this election. o That just didn't happen, however - Americans took it as an issue to avoid the next time around, but got over it very quickly. • Hanging chads. • People thought at the time that the country would crumble, that all respect for Court would be lost in the opinion. It had remarkably little dent; will be puzzle for historians looking back on Bush v. Gore - in some ways, things just went on. The Court wrung its hands, then everyone moved on. • Some argue that by beginning of 21 c, there was stability in country, that something like this could happen and it would not fall apart. • Country and Court survived Bush v. Gore.

The Perpetual Constitution

• As document • As symbol o Paraphernalia with "We the people" • As idea o Survives as idea of document that escapes all of the stories about its narrative. o "We the people in the First Grade have the Right to.... Feel safe; eat lunch"

Colonial politics - Path to revolution

• Assembly lawmaking • "actual" representation • Crown-appointed governors • Few trade acts Assembly was very powerful High degree of voting eligibility, experienced close to actual representation Colonial governors were only thing that got in the way of their laws • During this time, the colonies had moved to representative government o With certain obvious exceptions - slaves, women, etc. o Most males above 13, however, did participate in politics. • The colonies had their own assemblies • British really only had direct government control in the admiralty courts, but not everyone had the chance to interact with those courts. • Royal governors became very corrupt and kept asking the assemblies for more money to live a lavish lifestyle. • Legislatures had begun to dominate political lives; King vetoed some, but it didn't have much impact • Lots of actual representation, except for women and African Americans; still 2/3 of white men able • Governors tended to act like Kings; Britain pre-French/Indian War were very hands off, except w trade

Regionalization of slavery and antislavery (1780s-1820)

• At Constitutional Convention, delegates talk about regional division between N and S. people begin to appreciate that if you count enslaved people in political calculation, diferent regions get more power. • People in North suspect slavery was likely to go away; slave trade would end; they thought Constitution would bring about end of slave trade. They thought Const had significantly strong commerce power to end it. They thought Congress would limit expansion. Fundamentally believed people in the South would want to get out of slavery. That they would abandon and abolish it. • Lots of northerners formed anti-slavery societies. • Either by direct abolition (Quock Walker in MA) or gradually freeing people - most northern AA were free as of 1810, and the societies thought they were done and ended. • During the Revlution, many in VA wanted to abolish slavery. • Some felt: you should take the AA back to Africa. Inability to imagine an interracial society. Cannot imagine living with free whites and free AA's. • American Colonization Society: have people freed without ever having free black people around.

Regionalization of slavery and antislavery (1780s-1820)

Sojourner Truth's Speech (1851)

• At convention, full of anti-slavery activists - enormous racism. Racial overtones against her speaking. Even though they are the most radical, liberal people. Lesson: whenever you think you are radical, you probably aren't on some issue. Be open to that possibility. Everyone in the room thought they were good on all issues. • Partly anxiety about how the movement will be seen - we will watch this theme - the absorption of social prejudice in yourself - you aren't prejudiced, but others might think it, so you absorb it. • Speech was probably not exactly like either version - both versions are for groups of people, in the image they wanted her to be. • In one version, she says "I was whipped." • We will more explicitly touch upon her experience, vs white women's experiences for the vote.

Who is a lawyer?

• At this moment, the ability to become a lawyer begins to open up just a tiny bit. • Still very few women, but a few examples of women arguing cases o Lucy Terry Prince - argued in front of the Supreme Court. • African American men - especially in New England (1840s and beyond) o Macon Allen o Robert Morris • Still predominantly white men. • Some exceptions to white males; Lucy Terry Prince: black woman, argued in front of Supremes • African American men: Macon Allen and Robert Morris (Quack Walker descendant); New England

Regents of the University of California v. Bakke (1978)

• Beginning of the debate over Affirmative Action in higher education. • The Court tries to be in the middle and balance the concerns of both sides of the argument. • HELD: Race may be used as one of many factors in admissions decisions, but not the sole distinguishing characteristic. • Bakke is the beginning of a series of justices on the Supreme Court who will say, now is the time we can start over. o "Yes, this used to be true. But, we have passed some point now where it can be different." • Bakke also represents the beginning of the sense of the power of the Equal Protection Rights Club. o Groups all begin to try to gain safe harbor by getting into the Equal Protection Clause by showing that some right was denied you that was given to other people. o Now there are bills of rights everywhere • Affirmative Action; 16 of 100 slots were reserved for minorities; holding: race may be one factor • But race cannot be the sole distinguishing characteristic; may have been a problem once, but not now • Redefining individual rights; applies to the other students applying as well under 14th • Colleges can care about diversity; moving away from Warren Court; Powell says he was torn

Early State Constitutions

• Beginning of the three-branch system of government. • Constitutions created by ratification, just like the American Constitution.

The Tribes and Citizenship

• Being a citizen does not get you very much after Slaughterhouse and Civil Rights Cases • Thus, the government realizes that if it could make the Indians into citizens, they could gain their land in order to develop railroads and other projects. • The Supreme Court begins to cut back on the rights of the tribes. Wounded Knee: Sitting Bull and his people rise up and are massacred by the US Army.

What does Increase Mather criticize about the witch prosecutions? Does his critical stance come from standing outside of his society of from within it?

• Believed spectral evidence to be insufficient to be used as the basis for conviction. • Was traveling in England when hysteria broke out; members of the community already under arrest when he returned. o Within the system, we can't necessarily believe those protesting witnesses against the accused witches, because they themselves could be doing the devils work. o Better 10 witches escape than one innocent person be condemned; sermon in 1692 o Better for criminals to go free than jail the innocent; Cases of Conscience (1693)

Great Depression: 1929-1935

• Billions lost in giant stock market crash • Herbert Hoover was president and tried to (futilely) work with both labor and corporate entities. Hoover responds traditionally by trying to talk to each other. • Hoover appoints"The Four Horsemen of the Supreme Court" o Butler, McReynolds, Sutherland, van Devanter o All come of age after the Civil War o McReynolds: very prejudicial and mean. Grouch, reactionary, anti-Semitic. • Roosevelt, Democrat, becomes President, winning by a huge margin o Talked about and lauded the Party of Lincoln

Witchcraft Explanations - Medical

• Biological/ infectious disease ergot? Seizure issue? Not made up at the beginning?

Cotton Mather

• Born in Boston; lived there entire life. • Puritan minister; served at Second Church in Boston alongside his father Increase until 1723. • Studied witchcraft with fervor. • Believed it was his personal quest to rid the area of evil by studying cases of possession. • Went so far as to take a child into his home and study her. • Writings commented on the use of spectral evidence, including pockmarks and moles, as marks of possession. • Accused a former minister, George Burroughs, who was executed. • Also assisted in formulation of the smallpox vaccine.

Increase Mather

• Born in Dorchester; grew up under his staunch Puritan father's guidance. • Preached at North Church and Second Church. • Was traveling in England when the witchcraft hysteria broke out in 1691; returned to America to find members of the community already under arrest.

John Winthrop

• Born in England. • In 1630, sought to join Puritans who were emigrating as the Massachusetts Bay Colony. • Signed document affirming the group's intentions to remain part of the Church of England. • Chosen to lead the Company as governor.

From the Diary of Charles Gordon Matchett, A Law Student (1855-56)

• Born in Greenville, Ohio. Taught school and studied law at Cincinnati Law School. • Eventually practiced law in Greenville and became a captain during the Civil War.

What do Indentured Servitude materials suggest about the legal status and regulation of indentured servants?

• Bound in terms of things that are provided for the person. It was regulated. • Legal remedies - the court system is open to them in case of abuse. Court is not a champion of the indentured servant, but they are able to bring complaints. They are able to testify in court. Remedy is not great - you would be transferred to another family but still an indentured servant. • Not allowed to get married; not supposed to have sex. Private life regulated. • Not supposed to interact with people who were enslaved - wanted to make sure they could not form groups with people who would rise up. Nathaniel Bacon staged a rebellion. If all those groups got together, you would have a real problem.

Jean de Brebeuf

• Brebeuf was a member of the Society of Jesus. • Lived in what is now Ontario, Canada with the Huron and learned the language. • 1649, captured by the Iroquois and tortured. • In the 1930s, he was canonized. • Remains well known for creating the Huron Carol.

How are the Reconstruction Amendments interpreted in the Civil Rights Cases?

• Court says that neither the 13th or 14th Amendment cannot be used • 13th amendment is only about slavery • 14th amendment gives the federal government no power to touch a private citizen action, can only sanction acts done by state actors o there is no way the 14th amendment touches anything other than state issues o creates the State Action Doctrine, gives the States lots of room to act • strikes down the 1875 Civil Rights Act • Harlan vigorously dissents

What is a constitution: British constitution

• British Concept of a fixed constitution: common understanding of government and society - describes the form of government, but doesn't entail significant boundaries on the King or Parliament. o Practical problem: there really are no limits • Unwritten. Still unwritten. Very annoying to the British that most people have moved to a written constitution. Aggravated that people do not think they have a constitution, because they perceive that they have one of the oldest in the world; just not limited to writing on a paper. • Organic constitution: included what made up the government; and the history - not just a piece of paper, but whole understanding of the way the country worked. • Whig version of history • Everyone thought there was a constitution, argued about whether things were understood correctly, but could not point to an actual constitution. • 3 parts of governing body: o King o House of Lords o House of Commons o All sort of vague - monarch, aristocracy, democracy. Mixed government: government worked best when mixed with these elements all together. As opposed to Americans, with everything all in box - it was more fluid. • How do you control that? differet views by Revolutionary period: o Parliament is supreme. o Other view: Parliament is self-correcting; not really outside the constitution. o Other: you can point to magna carta and say that British government is outside the constitution; when people get upset, they can point to magna carta. o Not the way Americans think of it: we think point to a document. • Unwritten; just a notion of history and political practices; Magna Carta changes over time; no document • Says from the Wittin Moot; can't point to it though, beyond memory; Parliament had most power • King (monarch), House of Lords (aristocracy), and House of Commons (democracy); the three branches

Parliament should be limited by representation

• British expenditures for the war were huge. The debt was double their peacetime budget. They begin to try and pay for it. • Because of French and Indian War, they leave a standing army and try to raise money. • Sugar Act 1764 • Americans protest. • But it doesn't make much money. So the British want to make money on every action the colonies do. Leads to Stamp Act. • Stamp Act: • Feels much more like a tax than a duty. • Lawyers go crazy. • Bad combination: people who don't want to pay taxes, and lawyers who have decided the tax is illegal. • Everything goes crazy. Patrick Henry gives famous speech. • Repealed in 1766.

Congresses (Sept 1774) and Common Sense (Jan 1776)

• Bunker Hill • British have tremendous losses; declare war. • Thomas Jefferson • It will be Paine who is so important in the story. • Resonated with people who were not involved in politics. Easy to understand. • Society comes first. • This was a world where everyone had a king - this is treasonous. He pushes against monarchy in a moment where monarchy is still in the air. • "... in America THE LAW IS KING."

Richard Burn, The Justice of the Peace (1755)

• Bur revolutionized the method in which fellow justices of the peace could research materials necessary for their positions. • Before this, justices had to forage through poorly organized manuals. • This work presented categories of materials that contained info regarding the precise manner in which to go about grappling with particular issues.

Bar Associations Form:

• By 1878, 12 states have state-wide bar associations • Also in 1878: ABA established. • The ABA immediately turns to the question of who should be a lawyer. o Bar Examination - Soon become the dominant mode of admitting people to the bar. o Before, had been oral examination and/or bar privilege • Push for formal study. o In 1870: less than 25% of lawyers have gone to law school o By 1920: More than 2/3 of lawyers have gone to law school. • Who should be members of the bar? o "Character" allowed leaders of the bar to weed out people who they did not want to admit. Often used to keep out African Americans, Jews, Asians • Although, very few people joined the bar associations • Age of associations; ABA: uniformity; regulate who belongs in the club; like AMA; uniform standards • Pushes to require law schools; too easy to become one; only 25% of bars pushed law school in 1870

Classic Legal Liberalism

• Cases in the post-war era are marked by a distinctive style of writing opinions. Label: classic legal liberalism. Distinctive for a few reasons: o Filled with binaries. Everything is contrasted in a binary manner. (direct/indirect, manufacturing/commerce, necessary/incidental). As compared to multi-part balancing tests. Advantage of this is being able to throw things outside of the box. o Abstract classifications. Like Langdell. Behind the law are these large concepts. (Duty, freedom of contract) o State is neutral, uninvolved. Tried to see the law as apolitical and not motivated by policy. Law is law. • From post-Civil War Republicans/slaughterhouse dissent; individuals should have economic freedom • Right to contract unregulated by the State; more libertarian; State allows pursuit of economic gains • Obsessed with binaries: direct/indirect, manufacturing/commerce; today, multi-part balancing tests • Belief that law was objective and neutral; problematic for confronting social problems

Main Points - Legality of Discovery:

• Catholic: Discovery + Pope's imprimatur is enough o OK because the natives are not Christian and outside of the law • British: Discovery + settlement required o OK because the land is not being used by the natives to the fullest extent possible.

The reality of removal: the Trail of Tears

• Cherokee, Seminole, Chickasaw, Chocktaw, and one other are forced to remove. • Removed to Oklahoma in the winter. 4,000 people die during the journey. Lowest bidders won the removal contract, so the supplies were not sufficient. • "Trail of Tears" "The Trail where they cry" • Supremes realize they have no power against GA, and Jackson moves ahead with removal • Take 46k away; pushed into Oklahoma; many objections; only 2k voluntarily leave • 15k Cherokee stayed, General Scott forcefully removed with 7k, 4k died; lowest bidder contract • Opens up 25 million acres in GA; Cherokee still have a black star to remember

Law as Community Regulator

• Disruption of community's self-perception • Relevance of status • Law's role as restorer of "community" • Instead of explicitly saying this is the rule, it can run things in a way that subtly forces people to comply or to pay a very high price. A modern version of this is called "norms theory." • We see this in matters involving family, sexual relations, gender. • Whig tradition - the world becomes politically more enlightened; tend to think people are more liberated than in the past. But people are the same as today, but things are interpreted differently.

The decline of colonization and southern market expansion

• Colonization becomes hard to imagine in any way. (Although Lincoln will advocate it early in presidency.) • Liberia and US have had long-standing relationship - Liberia is settled by African Americans who were sent there under these colonization programs. • Most free AA's rejected being resettled; had live in US for many generations and had no interest in going to Africa. • Not a real option. • What the failure of colonization means for Virginians was that it makes it almost impossible for them to imagine freeing people. They become wedded to the notion that you cannot have free AA's. Continuation of slavery becomes increasingly ideologically loaded. • In South, cotton becomes dominant economy, major export. More than all other exports combined. South swivels toward cotton economy. Cotton is high / intensive labor crop; need enormous number of people to work in brutal conditions. • You could also use slaves on farms, mining operations. Nothing inherently limited slavery to the South. As white people moved west, they brought slaves with them. By the Civil War, 1 million slaves lived in the West. • Middle class whites began to see that by owning a couple people, they could begin to move up the social/economic ladder. So they began to be invested in slavery. • Slavery expands enormously, despite the fact that the states begin to abolish the international slave trade, more people are brought in between 1795-1805. • Middle class start wanting to protect slavery - that spread, in the 1830s-40s, create situation that leads to civil War. • By 1830, most people in the South realize that Liberia is not a real possibility. • With this realization, many Southern writers move toward a positive defense of the institution of slavery o This is because they see major cotton plantations - the wave of the future - as dependent on a slave population. o People also begin to think about slaves not only as useful for agriculture, but also for manufacturing, mining, etc. o Many people also saw that most people don't own anyone in the South. • Over 1 million people are taken westward to become slaves in the new territories.

What is a lawyer - dueling images - common view

• Common View: Many people are unhappy with the role of the lawyer in society. -Frederick Robinson "Oration" o Self Perpetual: Some say that they have a clever scheme whereby they pass complicated laws that can't be understood by anyone but lawyer, so they perpetuate themselves. o Aristocracy: Attorneys are members of a secret, unintelligible group that resembles an aristocracy. There is a sense of suspicion pervading.

Cotton Mather, The Wonders of the Invisible World (1692)

• Composed at the request of the presiding judges. Described a number of trials taking place in Salem in 1692. • Sparked a controversy - other writers responded condemning the proceedings and deriding the role that well-respected community members played in them.

The limits of the Freedman's Bureau

• Congress asks, what should be done for those formerly held as slaves. • 1865: Congress establishes the Freedman's Bureau o Temporary measure • WEB Dubois (The Souls of Black Folks) • Lincoln moved quickly toward giving amnesty to the people in the South in order to put the Union back together. • Thus, freed slaves get nothing, no land, because all the land is given back to the whites. • Educational Mission of the Freedman's bureau: most successful aspect of the program according to Dubois o Out of these educational institutes come many of our traditionally black colleges. • DuBois sees that there remained racial tensions in the South. • At the end, the blacks still are not free - there are restrictions on voting, education, property ownership, social equality. • Still not possible for people to be black and American. They are only black, the definition of "American" is still "White."

Constitution: signed September 17, 1787

• Constitution signed on Sept. 17, 1787. • Removed the states names from the preamble • Mason and Randolph don't sign and go on to oppose ratification. • NEEDED 9 STATES FOR RATIFICATION • but not everyone signed. • They crossed the states out so that the document would speak for the people without everyone signing it. • Some of the people who refused to sign will become leaders in the effort to amend. • Franklin gives rising sun speech. • He published the speech. Or had it published by someone.

Four Letters on Interesting Subjects, Letter IV - Anonymous (1776)

• Constitution vs. constitution - big "C" vs. little "c" • A constitution is something that binds people and delineates their freedoms and powers. • Most significant difference between American and Britain constitution: American Constitution is written down. • Says there are no limits on British government - in theory, Parliament can alter all the rules. No bounds on their authority. And they can alter the rules on who is Parliament. • Says a constitution is a fixed, written constitution. • Should answer: what should the form of government be, and what should its powers be? • Constitution is a line that bounds power, and you can point to it. • For Americans, this resonates. The colonies' experience was of always being bounded; legislatures had always been bounded by Parliament, etc. Always experienced legislatures that way. • Made sense to have a piece of paper that bound them. Allowed Americans to push away from England. Becomes story going forward. Sets out the kind of government that limits the power; we take it for granted today No one really knew what a constitution did before; wasn't one you could point to Binds people and delineates their freedoms and powers; we just accept Con. tells us what to do • Radical idea that a piece of paper will govern legislation for hundreds of years and limit legislation

The Library of William Harris

• Contents of library appear in inventory composed by his wife and daughter. • Books were mostly early and mid-17th century publications. • Many had been borrowed by men in RI serving as the clerk for the assembly and court, the attorney general, and other prominent legal roles.

Experimentation with Governance - Virginia

• Corporation; add assembly; to royal colony (1624) Virginia Company - Corporation o Many of the people who sailed to Virginia with the Virginia Company were not members of the company. o The House of Burgesses is given the authority to enact laws, subject to confirmation of a court in England. • The Governor has veto power over the House of Burgesses ("negative voice") • If no veto, sent back to England for approval. o Eventually the company goes bankrupt, but the Crown doesn't know exactly how to force them to stop running the colony. o The Crown sent an investigatory group to Virginia. They find evidence of malfeasance and revoke the charter - quo warranto (ultra vires in the modern context). o Once the charter is revoked, the colony system is established whereby the Governor is alone responsible to the King. o However, it is too late to have abolish the House of Burgesses, so that remains as well. o STARTED WITH A CORPORATION AND TURNED INTO A "MODERN" POLITICAL SYSTEM. o Jamestown; had to bring in women to make the forts; Marshall law worked well, but not enticing o Say if you bring family, you will get land; assembly of people had power to solve affairs; faster, Gov veto o Couldn't wait for decisions from England; bankrupt, charter revoked by King, still go own o Virginia Company (1621) o Set up counsel in London and in VA o VA council sets up House of Burgesses in 1619 - bicameral o Crown tried to take back charter, but House of Burgesses ignored

What is a witch? (C. Mather and Increase Mather)

• Cotton Mather (son) - tells everyone what a witch looks like in published works, such as "Memorable Providences" o Colonial statutes: consorting with supernatural powers/spirits. o Can make you and your spirit invisible - can't see the witch committing satanic acts/harming people o Apparition ability - can be seen somewhere where your body is not. o Can inflict people with diseases o Can physically mark people. o Covenant with the Devil - as compared to the good covenant with God. Covenant with the devil is created when you've signed the compact. You have consented to this relationship, as a witch. • Cotton Mather (the son): writes lots of books. Writes a book called Memorable Providences: tells you what a witch is, what they do, how you know a witch. • Cultural script about witches; lots of literature around. • Theologically, who is a witch? • Lots of bad things happen because of witches. • Witch is in line with Satan, as opposed to God. Satan's goal is to end Christianity. The world is Christians / not Christians. • Witch has a covenant with the devil. You consent to join the side of the devil. They often say you "signed the book." • How does the witch work: • The work has a specter, who goes up and grabs your money, or pokes you. There is a causal agent. • The trials focused on getting evidence of the specter. If no evidence of the specter, you could not prove there was a witch. • Lots of physical things happen to people, and the witch is involved. • Prosecutions of infanticide correspond to prosecutions of witchcraft. If you had a child who was born dead, or people believed was born alive then died, or you had miscarriage (Anne Hutchinson), or had child with significant deformities, those were signs that you were a witch. Showed you were disfavored. • Markings on your body were also signs that you either were a witch, or the witch had marked you. • Common things that nobody talks about: extra/missing toes; male tertiary nipple. We now think of it as genetics; they thought something happened to you. You were disfavored by God. You were the witch, or the witch did it to you.

The Three-Fifths Compromise of 1787

• Could not figure out if they should base it on free inhabitants, total population, or wealth. • South - people like Pinckney, the big slave owners - think slaves should count as a whole person. • Northern people do not want them to count at all. • 3/5 clause splits the difference. • With the 3/5 clause, VA is still benefited a lot. • Timing of 3/5 compromise corresponds to the passage of the Northwest Ordinance in Congress. Legislation in Congress that converts the Midwest into states. Says you cannot have slavery in this area. Once it is passed, people in the Convention seem more comfortable with the 3/5 clause. Northerners might have been more comfortable because this meant slavery would be confined to the south. Southerners were more comfortable with it because they thought as the US expanded, there would be a lot more slavery. NW Ordinance suggests to both sides that the future will be what they envision. Gives the slave owning states a huge advantage in controlling Congress. So they could make sure Congress never has the power to abolish slavery.

What ideas are put forward at the Convention for review of legislation?

• Council of Revision loses; National Legislature negative state law - eventually loses; Supremacy Clause wins; most delegates assume judiciary will void laws repugnant to constitution. • Everyone thinks there will be judicial review, because that is the meaning of Constitution. • They also thought Congress would be able to review. • What becomes striking about American system is that only the judiciary will have that power. • Madison wanted more national control with the Federal negative (veto) of state laws. • That idea loses, however, and the Supreme Court gets oversight of state law. • The judiciary also gets to determine whether the federal legislation is against the Constitution.- The Council of Revision falls out and there is no ex ante review. • Everyone understands what Irdell writes - that the judiciary's job is to determine constitutionality. • What everyone didn't understand was that there would be so many cases coming before the judiciary. • Not controversial because the ideal of judicial review is controversial, but because the judiciary is the only branch to have that power, giving them A LOT OF POWER.

Labor Reorganization

• Court said we have to be in the business of regulating corporations. • When it comes to labor, Court is not as quick to understand realities of the new market. 1. Initial failure of labor organizations • Many great protest songs come out of this movement. • Not successful on hours, conditions, etc. • "Successes" involve anti-ethnic efforts. Keeping people who are Chinese out of the business. • Homestead Steel Strikes - Carnegie decides 20% pay cut for people working in steel; they do lock out; Carnegie brings in Pinkerton forces; refuses to negotiate with the Union; terrible gunfight in which 16 people are killed; PA militia is called in. piece from Harper's Weekly is symbolic of many Americans' reaction: labor is getting in the way of legitimate people trying to have jobs; Carnegie is great. • American Federation of Labor - skilled women, not great on women and race; but in that small area labor begins to be effective. 2. Court's Response: Lochner v. NY (1905) 3. The rise of reform legislation • Muller v. Oregon (1908): SCOTUS finds a case to uphold labor legislation. • 10 hour day for women. • Women are fragile; states' job to look out for them; all paternalistic assumptions. • With the development of the large corporation, labor faces new and difficult problems. • The labor movement is completely ineffective at achieving the 8-hour day. • The only thing they are successful at is bringing legislative reform movements designed to limit the ways in which companies can decide who not to hire (can't decline to hire based on race) • This movement aligned with the ideals of other groups in the country, so somewhat successful. • Homestead Riots • Slowly, following such riots and unionization, movement for hours and wage reform swells. • The Court continually strikes these reforms down in this period, however. • Eventually, we do see reform in labor, however - especially where the government has for a long time been accepted as regulating. • Child labor is the beginning.

Reagan Conservativism

• Distinct from what we consider the earlier and also the present conservativism. • He slightly shifted the direction of the country under his presidency. • Reagan more than anyone else realized that you needed to appear as an ordinary person who understands ordinary Americans. • Elected President in 1981; first to effectively use television, now all have to; appeared ordinary

Regionalism and Law - New England Family Model

• Covenanted Family Model o Family Law • Marriage is civil and not religious. • Divorce is available as you could both consent to leaving the covenant • They carried about fornication and the care of the resulting children. o Consent matters (ie you agreed to give up your liberty); marriage civil, so no church o High divorce rate; worried about sex and pregnancy; issue of paternity/child support o Many women pregnant on wedding day; highly coercive family structure; lots of marriage/coercive o A covenanted family model. o Still a patriarchy, but imagines it differently. In VA, dad is head of family, no questions asked. o Winthrop compares why everyone should follow his rule to a family situation: using the family to describe political situation. The wife happily submits - she consents to being married and subjugated. Having chosen to enter into the relationship, she consents to being subordinate. o Still a patriarchy, but the language is of choice. The metaphor is free choice, willing subjugation. o Comes from NE political society, corporate self-governed notion; from bottom-up religious authorities. o Gender balance much more equal; men and women marry at later ages. o Less death, so people tended to live in nuclear families. o In terms of marriage law, civil inheritance. Religion is out of it. Political issue and they believe in consent. o Most people are married. Enormous pressure on single people. Single people are thought to be dangerous, not part of a family. o We will see that in Salem. Being unmarried makes it look like you are not in God's favor. o Early NE is surprisingly okay with divorce. o RI case: better to get divorced and get people married into another family. o Uncomfortable with sex outside marriage. Particularly child support issues. Couples use fornication as a way to get married if their parents do not approve. 1 in 5 brides was pregnant at the wedding - want to marry fast enough to claim the baby was conceived during marriage. o Inheritance scheme: everyone gets one portion; the eldest son gets a double portion. o So we get regionalism in family law. On the gender piece, we do not really get regionalism.

Position of the Wife in Early American Law

• Coverture • Married woman had no power to sue, transact on her own, but did it all under the name of her husband • The legal woman vanished upon marriage. • No longer have rights in the public sphere that you would have when you were single. • Blackstone: We have changed. Husbands may no longer beat their lives with impunity.

Married Women and Property

• Coverture for married women. • As real property became more valuable in colonies, women's interests in securing their own rights in their inherited and acquired lands grew.

What vision of the lawyer is the Cravath firm promoting?

• Cravath's Model of Recruiting o Mostly the same today o Biggest difference: Cravath did not believe in lawyers trying to bring in business, but today that is valued. o Thought that people learned best by starting with a very small piece of the puzzle and gradually learning more and more. o Origins of the recruiting that still predominates today.

Secession (1861)

• Crittenden Compromise: Some people try to argue that we go back to the 36-30 line dividing slavery and free states. o Many people realize that this won't work. • Lincoln's Inaugural Speech: o He thinks of this as holding out a hand to the South as a friend, conciliatory. o However, he says that the ball is in the South's court not to start a civil war. • Fort Sumter fired on in April 1861. • Union command is given to Robert E. Lee, but he declines and goes to the South, from where he came. • Most of the people who fought on the side of the Confederacy in the civil war never owned slaves themselves, because they were not wealthy enough, but slavery is the base upon which their Constitution is based. • Border States - Kentucky, Maryland, West Virginia, Missouri, Delaware o Important for Lincoln to keep these states even though they allow slavery because they are important to the success of the North.

Diary of Grace Growden Galloway

• Daughter of a wealthy Pennsylvanian gentlemen; received an inheritance. Married Joseph Galloway. While he fled to Britain as others contemplated a revolution, she remained in Philadelphia to try to preserve the family property. • Marriage - woman loses freedom • Property seized • Gets her property taken away; husband was a loyalist; even though she inherited; women vulnerable

Committee of Detail (August 6)

• Debate on the Committee of Detail Draft and Slavery

Expectations: Uncertain

• Delaware: unanimous • PA: 46-23 • NJ, Georgia: unanimous • CT: 128-40 • MA: close (187-168) and with amendments • Idea that they should qualify ratification with amendments. • Expectations continue to be shaky. • NH Convention adjourns. RI rejects. • They get 9 states. • Eventually, VA will be 10th state and NY will be 11th. But that was unknown, that summer. So the Constitution was ratified without VA and NY. • The problem with the Constitution going into effect without those two: they have huge populations. There is a significant percentage of the population outside of the Constitution. • Geographically, because of NY, New England is completely isolated from the middle states. NY and VA geographically divide the country in ways that people are particularly worried about. If VA did not ratify, people were worried that Spain (in Florida and Louisiana) would move into the southern area.

William Bradford, excerpt from On Plimoth Plantation

• Describes the first marriage in this place. • Which, according to the laudable custome of the Low-Cuntries, in which they had lived, was thought most requisite to be performed by the magistrate, as being a civill thing, upon which many questions aboute inheritances doe depende ... and nowher found in the gospel to be layed on the ministers as a part of their office. • That those of any religion, after lawfull and open publication, coming before the magistrats, in the Town or Stat-house, were to be orderly (by them) married to one another.

Thomas Jefferson's Recommendation for a Course of Law Study (1770s & 1814)

• Detailed a suggested course of study in law. • Included more than just legal materials. • Advised study of astronomy, philosophy, and other subjects to foster a well rounded education. • Law is a part of a liberal arts education. You must be well read in other areas as well. • Law is serious. It takes study and a lot of time. • Jefferson is very aware that law changes over time, so one should keep a commonplace book, which listed the common law doctrines alphabetically. o Version of the modern day legal brief

Case of Elizabeth Key (1655-56)

• Elizabeth Key was born to a white Virginian planter named Thomas Key and an African-American woman he owned as a slave. • Sold in 1636 with Keys plantation to Humphrey Higginson, Elizabeth's godfather. • Terms said that if Higginson were to die in VA within 9 years of his acquisition of the plantation, then Elizabeth would be freed. • After Higginson's death, however, Elizabeth continued to be held in servitude by Higginson's estate administration, John Mottrom. • Elizabeth, with the help of William Greenstead, a white attorney she later married, sued Mottrom's estate for her freedom. o Daughter of a slave and the master of the plantation. o When her father dies, he leaves the plantation to another person, Higginson. o One condition of this is if he dies within 9 years, Elizabeth should be freed. This is more of an indentured servitude than slavery. o Instead, when Higginson dies, his estate will not release her. o At this time, there is no rule that her mother's status determines her status. o People come in and testify that because of her father's status, she is even thought of as being of a higher status. o The court says that she is free and should be paid for the amount of time they kept her beyond the time that Higginson dies. o She gets married to her white attorney.

Letter from Elizabeth Graeme - possibly not discussed in class

• Elizabeth obtained from her husband power of attorney, authority which allowed her to manage their estate while he was away. • He then deserted her and returned to permanently reside in England, in protest of the outcome of the war. • She wrote in a letter to a woman whose daughter had passed away her belief that the woman's daughter was spared the anguish that a married woman typically had to suffer.

Corporations in England

• England: corporations were disfavored, except where they were used abroad. o Used partnerships instead of the corporation.

ii. Background to witchcraft - Transition to Royal Colonies: Massachusetts loses charter (1684); Connecticut (1688)

• Enormous instability in terms of English political authorities. • King began to revoke charters and replace • The MA charter was revoked; governor sailed to England to get a new charter; in the moment without a charter, Salem happens. • 1686-1688: dominion of new England under Sir Edmund Andros • 1689: no Charter; Gov. Simon Bradstreet (poet Anne's husband)

ii. Transition to Royal Colonies: Massachusetts loses charter (1684); Connecticut (1688)

Massachusetts Constitution Materials

• Even before Congress declared independence, towns in MA were asking for a constitution. • In June 1777, the Council and House of Representatives formed a committee, chaired by Jeremiah Powell, to draft a constitution. • Documents reflect the changing understanding of a "constitution." • The ratification process followed by MA became the model for the 1787 US Constitution.

What changes in 1865?

• Even in the South, ideas were changing about slavery. o Jefferson Davis asks for and eventually gets the permission to allow blacks to join the ranks of the confederacy in exchange for freedom o Order never goes into effect because Lee surrenders April 9, 1965. o Historians interpret this shift as the recognition of southerners that their way of life can go on without the institution of slavery.

Industrial Reorganization

• Eventually, people accept government regulation of corporations. o Standard oil is broken up eventually by another giant trust • All of the people who created these giant corporations also become triumphs of philanthropy - a very good PR move. • Never again are corporations to be small and limited by state law.

The slave Power:

• FSL changes the way everyone thinks. • Northerners begin to believe in Slave Power - there is a push over and over again to make the whole country slave states. • Congress voids Missouri Compromise • Federal Courts seem open to Fifth Amendment argument • State courts powerless (1854-1859) • It is on this platform that Lincoln runs.

Parliament is limited by "constitution"?

• Famous case: Writs of Assistance • James Otis • Search and seizure case. Writs could be transferred to someone else; they lasted a really long time. • In 1760, the writs get renewed, because there is a new king. • Adams listens to James Otis make the argument and records it. • Otis argument: has become part of our legal discourse. Distinguishes between special writs and general writs. They are arbitrary; feel like giving somebody complete power. Not regulated or defined. He argues for them to be struck down. He says it is against the Constitution. • There was no constitution - he means our unwritten understanding of how the world is supposed to operate. Something outside of Parliament. • In this time, Parliament was supreme; did not believe there could be a limit to their power. • Otis is famous for saying that legislation is limited by a constitution. "There and then the child of independence was born." the notion that legislation is limited by a larger understanding. • Otis lost, but went down as a very important person. He had been asked to argue on the side of the British, but turned it down and argued this side for free - early example of pro bono.

The Committee of Style (Sept.)

• Final draft of the Constitution. We now have "We the people." • In the final minutes of Convention, there is important vote - Mason said we should have a committee to write a Bill of Rights. • No state voted for this committee. • No Bill of Rights written into Constitution. • There are rights in the Constitution - criminal rights, habeas corpus.

What powers does the corporation have? What limits does it have?

• Five Traditional Powers of the Corporation o Hold property o Sue and be sued o Common seal (delegation of corporate power in a single person) o Make your own laws o Perpetual succession - achieved through a charter. • Limitations of property and money that can be held by the corporation. o Prevents corporations, unlike today's, from getting too big. • Totally Regulated internally in their charters o For example, the turnpike can only gather tolls in a certain amount and for a certain period before it must be turned over to the state. • Collapsed by the terms of the charter if the corporation did not fulfill the public purpose. o The doctrine of ultra vires would allow collapsing of a corporation if they acted outside of the specific delineations in their charters. • Shares o The legislature was willing to classify different classes of shareholders o Also capped voting power at a certain limit. Important in a world where the good thing about the corporation is that a lot of small people get together to do something. We don't want centralized control of the corporation. • Like putting money in a bank today. Return on investment is different than control of the corporation. We are worried about people taking over a corporation individually and using the special powers of the form to do things that they otherwise could not do as an individual person. This is inimical to today's idea of the corporation because it would disincentivize people from investing in corporations because it does not align power with investment. • Many corporations were forced to pay out dividends - again, we don't want centralized power in the corporation. o Today, this requirement remains in charitable corporations, sometimes. In fact, in this period, people don't necessarily want a lot of control because the doctrine of LIMITED LIABILITY has not yet been developed.

Thomas Paine's "Common Sense"

• Following the battle of Lexington and Concord in April 1775, Paine wrote a pamphlet advocating separation from, not reconciliation with, Great Britain. • Supported by Franklin, Samuel Adams, and Benjamin Rush. • Paine declared that Britain had no constitution and that the nation's government had never come from the people. • Eventually, Paine was accused of seditious libel in England and tried in absentia; his works were made illegal. • Obituary: "He had lived long, did some good and much harm." • Hired to write a tract arguing for independence; no hope of reconciliation at this point • Said it is inevitable; if not now, it will get worse; first time he imagines the US as being the continent • Says no way the British from a small island should control; manifest destiny ideal; unified • Instead of having a king, the law should be king; very influential and persuasive; united States

Typical Patent Language

• Formula of constitutionally delegated lawmaking authority. • Appeared in various versions throughout English governance of the American settlements. • "full and mere power and authorities to correct, punish, pardon, governe and rule" with laws "for the better government of the said people," but "as neere as conveniently may, agreeable to the forme of the laws & policy of England."

William Blackstone, Commentaries (1765)

• Four volume work describing English law. • He returned to Oxford in 1753 to begin a series of lectures on the laws of England, designed not just for lawyers but rather for anyone who wished to obtain basic understanding of the legal system. • On married women: o Women considered a legal extension of her husband o Can't devise lands to H by will o Blackstone's description applies to the colonies for most of this time.

Letters from Generals Butler and Hunter on Emancipation (1861-62)

• General Butler: Union general during the Civil War. • General Scott: Commanding General of the US Army 1841-1861. o Was commander in Chief of the US Army when the Civil War broke out in 1861, but his proposed strategy of splitting the Confederacy - the plan eventually adopted - was ridiculed. • General Hunter: Union officer during the Civil War. o In 1862, proclaimed the freedom of slaves in GA, FL, and SC. Lincoln revoked the order. o Organized the Union Army's first Negro regiment while in SC.

The Debate - Opponents of the Constitution: "Men of Little Faith"

• Gerry (MA), Yates & Lansing (NY), Martin (MD), Mason & Randolph (VA) • Wrote anonymously as Brutus and Federal Farmer, not sure who was who.

Case of Thomas Granger (Plymouth) (as recounted by Bradford)

• Granger, a teenager was accused of having sex with a litany of farm animals. • Someone claimed to have accidentally seen Granger in one of these acts. • Eventually, Granger confessed to having sex with a long list of farm animals o At this point we begin to question whether this actually happened, but no one could stand up and defend him without themselves being ostracized/accused of a similar act. • Resolution: Execute all the animals and execute Granger. • Servant caught having sex with a host of farm animals; bestiality; before, victimless crime: not with PETA • Unlikely to be accurate; long confession; many of these cases; crime was death; eventually confessed • Deformed eyes with animals and a servant; assume the pig got it from the human sleeping with them

Wampanoag

• Group of Indians who lived in the area now known as Cape Cod. • Made arrangements with Separatists.

English politics - Path to revolution

• Growing parliamentary supremacy • Virtual representation in a one-party system • Increasing trade acts • Informal corruption • The Brits thought that political authority rested with parliament. • The British believed that virtual representation triumphed over actual representation. o Example: Dunwich - a non city with a representative o Example: Newer city with may thousands of inhabitants without a representative. • Informal corruption ran rampant. The British accepted this. • In England, parliamentary supremacy; had odd property requirements that made representation odd • Corruption rampant on both sides; 2 million in colonies; huge trade economy; England dependent • Smith: Wealth of Nations; colonies send raw materials and buy refined products; UK economic health

Why they decided they should eventually have the Bill of Rights

• Half a loaf is better than none: Might as well have some, even if we can't have all of them. • Enumeration problem: 9th Amendment - People retain all the rights that aren't here enumerated - they have more rights than those present in the list. • Madison only picked those to enumerate that he thought they could get through. • His idea was to integrate the rights into the Constitution itself rather than putting them at the end - didn't end up that way.

Iredell was not at the Convention - what was his idea?

• Served as a judge and attorney general in NC. • Was appointed by Washington to the first Supreme Court. • that the judiciary's job is to determine constitutionality.

What is the vision of the federal courts in the Judiciary Act?

• It created a judiciary considerably different than the judiciary we know in the 21st century. o Supreme Court's jurisdiction was more limited than it is today - no federal question, less diversity - job was essentially to decide admiralty cases. o SC Justices also were Circuit Court judges, spent a lot of their time traveling and interacting with ordinary people more often than today. • America has to imagine what a single court will look like. • Oliver Ellsworth basically drafts the first Judiciary Act. • The Judiciary Act • There are 6 justices. Why even number? You would need a supermajority to win. Would need at least 4-2. There would be no split decisions. Might feel different from a 4-3 or 5-4. doesn't come down to one person so much - why should one person be overruling all of Congress. The docket would look different - they won't take a case if it will not get 4 people. • No intermediate appellate court. There is an intermediate system, but made up of 2 supreme court justices. Regionally selected so they could represent regionally. Today, 5 justices are from NY; that would be unheard of in early years. • There is no federal question jurisdiction in the federal courts. The only way questions under a federal jurisdiction will get to SCOTUS is if they come through the state system. That is not the way most of our con law cases come up. This is a completely different system. SCOTUS has tons of business, but mostly commercial ... • System which creates Sup Ct, but is very careful to leave in place the state Sup Ct.

Cushman

• It is legal to occupy the land because it is empty and unoccupied. • If we say that occupation = ownership, then how do we get around the fact that the natives occupied it before? • THEY ARE NOT USING THE LAND IN THE RIGHT WAY, THEY ARE WASTING THE LAND BY NOT CULTIVATING IT AND BUILDING UPON IT.

The rhetoric of removal

• Jackson: when he left office: • Philanthropist will be glad they have been placed beyond injury now beyond the reach of injury and oppression De Tocqueville: US about to deprive rights better than the Spanish did

The Debates in the Federal Convention (May - September 1787)

• James Madison's notes are the usual source for the Convention. Robert Yates and Rufus King also took notes. • The records fill 2 volumes.

William Marbury v. James Madison, Secretary of the State of the US (1803)

• January 1801: Marshall, then Secretary of State in outgoing Pres. Adams' cabinet, was nominated Chief Justice of Supreme Court. Continued to act as Secretary of State through March 3, 1801. • On March 2, Adams nominated 42 justices of the peace for the District. • March 3: Senate confirmations for these judges came; Adams' last day in office. Adams signed the commissions; signed and sealed by Secretary Marshall; but were not all delivered by the close of business that day. • Keep in mind, Marshall was first the Secretary of State for these writs of mandamus pre-CJ • Creates judicial review for constitutionality; Bilder says everyone thought the court had this ability • No discussion about judicial review at the time; all about how the two party system operates • Marshall: Constitution limits the President, forces him to behave like a President; bound to politics • Court helps ensure a smooth, peaceful transition of power; keep the craziness at bay; by interpretation • Notes that the court, not Congress, decides the court's jurisdiction; reads the Constitution itself • Judges are to strike down laws if repugnant to the Constitution; not new or surprising • De Tocqueville likes judicial review a lot; good for fighting tyrannical governments • Marshall has a powerful court; pushes for unanimity; only in 1830s are there dissenters

The Jesuis Relations

• Jean de Brebeuf, 1636 • A compilation of reports on the Jesuit missions in New France to the Jesuit Provincial in Paris. • Detailed his observations on Huron culture and politics and fell within a genre of European writing on "customs and manners of the savages."

The Omitted Section on Slavery from Jefferson's Draft

• Jefferson included in his June 28 draft a section on slavery. Different explanations have been advanced for the section.

Commonplace books

• Jefferson is very aware that law changes over time, so one should keep a commonplace book, which listed the common law doctrines alphabetically. o Version of the modern day legal brief

How is Jefferson thinking about slavery?

• Jefferson knows that slavery is wrong • BUT, he argues, there is already prejudice that we won't really get over and the issue is bound to end in violence. • He also says that the Black race is inferior and that can never be overcome. - the words of equality in the Constitutions do not apply to everyone, do not apply to blacks.

Thomas Jefferson, Notes on the State of Virginia

Jefferson to Madison (Sept. 6, 1789, Paris) From Paris, what concerns did Jefferson express?

• Jefferson, in France, writes Madison letters. • Hand delivers famous letter: asks does one generation of man have the right to bind another. • Is it right that a constitution binds people forever? • Jefferson argues, in his letter to Madison, that the dead hand should not control future generations. - THE ETERNAL QUESTION OF THE CONSTITUTON. • By presidency, he changed mind.

The Meanings of Marbury

• Marbury in its historical context differs from the case we read as a judicial review precedent. • What is important about making sure Marbury gets the office? Against this moment where Jefferson is going to sweep in and impeach everyone. • Trying to establish that if you complete all the political parts of the task - and all that is left is administerial - the incoming administration cannot change it. • Marbury says we all play these games - but there is a moment when things become part of the operating system of govt, and at that moment, you cannot play politics anymore. • Court takes the political sphere of govt and shrinks it back in important way. Says lots of the way the govt operates is just going to be standard operating procedure. People get to finish their terms, and you don't get to replace them all. • Emphasizes that court will enforce a peaceful transition; will make sure administerial things are administerial. • The court decides its own jurisdiction. What matters is Congress cannot give more jurisdiction to the court than the constitution requires, and also cannot take away jurisdiction. • If you were Jefferson, and you could not replace all the justices, you might want to shrink the jurisdiction. • The court cannot give more jurisdiction to Congress and cannot be stripped of its jurisdiction. • A written constitution allows, and requires, the court to strike things down as unconstitutional, because otherwise would be implying that Congress is greater than the constitution.

Women as Executors and Attorneys in Fact - Margaret Brent

• Margaret Brent migrated from England to Chesapeake Bay in 1638. • Margaret and sister obtained patent for 70.5 acres directly from Lord Baltimore. • They were awarded the land, and Margaret became the first Maryland woman to hold land in her own right. • Cousin Governor Leonard Calvert appointed Margaret sole executrix of his estate. • Provincial Court appointed her attorney in order to allow her to sell his land to pay soldiers, averting a civil war with the colony. • Later that month, Margaret asked to be seated in the Maryland Assembly and to have two votes, one for herself as landowner and one as Calvert's personal representative. • The assembly refused to seat her. • In 1658, a proclamation was passed that forbade husbands to appoint wives as attorneys. Passed laws saying women could not be attorneys, just to make sure no one got that idea again.

People v. Sanger (1918)

• Margaret Sanger: controversial packet - "What Every Girl Should Know" - quite explicit document. Litigation repeatedly brought aginst her, partic to bar the pamphlet.

The 1830s and the Court

• Marshall begins to lose control of the Court. • Coincides with the rise of new political parties. • 1829, Andrew Jackson is sworn in, represents new type of politics. • McLean, others join Court and start dissenting; Marshall does not like it. • Marshall dies; is replaced by Tawney. Tawney starts another era, most famous for Dred Scott decision.

The Court from Marshall to the 1830s

• Marshall was a politician. Now, Sup Ct are all either professors of federal appeals court people. Bilder thinks it would be better to have politicians. Marshall had politician sense of how you would build the court in this space. • When the Capital is built, the court moves into it. Stays till 20th century, when it moves into its own building.

Feudalism / Feudal Propriety (model of delegated authority)

• Maryland, Carolina o Although feudalism was pretty much dead in England at this time, in some places, only the nobility was responsible to the King, and then the subjects owed allegiance to the nobility (bishop) o Example: Palatine of the Bishop of Durham o Like a Mom and Pop store; single owner with as much power as you want; just nobility to the King o As long as taxes were paid, King didn't mind; Steve Jobs w Apple the proprietor, Wiki the voting corp o These differences lead to a lot of regional variation; RI: Gov doesn't do much, SC: Gov have more power o Feudal Proprietary County Palatine o Claims within England that somebody other than the king really owned the place. o Bishop of Durham o Not very many left by late 1500s but they existed. o The king said "I delegated power to the proprietor." not that we did not conquer that person. o You could become a corporation, but you could not become a proprietor, in England. o But it became a powerful way to create a colony.

Corporation (model of delegated authority)

• Mass, Virginia o Within England, this was a form of organization for certain towns and guilds. This was extended to exploratory ventures. o Similar structure to the corporate structure with which we are familiar today - CEO (Governor), COO (Deputy Governor), Board of directors (Assistants or magistrates), shareholders (Freemen), etc. o Existence not related to any one person. o Meetings are called "meetings of the general court" o Like a commercial trading company; get authority from crown; officers: governor, deputy gov, assistants o Meeting was a council; shareholders w voting rights: freemen; annual elections of officers: general court

Massachusetts Bay: corporation becomes commonwealth

• Massachusetts Body of Liberties • You could not enslave people unless they were willingly slaves, or if they were captives. • Mass General Court passes laws that are outside of English law • The Commonwealth executes Mary Dyer in 1660 for violating law forbidding Quakers. • The Mass Bay Colony went around executing people. They had significant sets of assumptions about their own religious righteousness and hierarchy.

Increase Mather, Cases of Conscience Concerning Witchcraft (October 1692)

• Mather expressed his opinion about witchcraft and spectral evidence. • Circulated in manuscript form after October 1692 and pushed in 1693. • One of the earliest writings articulating disapproval of the events surrounding witchcraft.

Reading poems at Inauguration

• Maya Angelou - 1993, Clinton inauguration • Robert Frost - 1961, Kennedy inauguration • Both poems talk about what it meant to be the US; who was "we"; shows how much things changed between those two.

The Burger Court (1969 - 1986)

• More rights; more balancing? o Thinks about which rights are essential to a democratic system and which are essential to individual liberty o Constantly thinking in terms of balancing tests - balancing constitutional review with the majority's decision in the legislature. • New issues begin to come up. Nixon was supposed to cut back Warren court; instead added Burger.

Witch Accusations in Europe

• Salem is not unique - all over the place in Europe. • Up till about 1200, there were not witchcraft trials. Under the early popes, partly because of Augustine, argued that God was so powerful that Satan could not exist in this world. Up till about 1200, the church pushed against popular cultural ideals that there were witches. • Around 1200, church begins to move away from that position and argue that Satan does exist and can do terrible things. Coincides with the rise of the Crusades, with the church positioning itself against the Islamic states. • Witchcraft became something very real to the church. • Pope Innocent VIII commissioned the Malleus Maleficarum (1486) - becomes the textbook for how to deal with witches. Maleficarum is a feminized word - notion of witches that is feminized. You can read it on the internet. How do you torture people; what kind of evidence can you admit; how do you go about it; gives legitimacy to the idea of prosecuting witches. • Between late 15 and 17th centuries, witch prosecutions exist across Europe. • Men were often accused of being witches, but it is a gendered crime in a lot of ways. Unlike male crimes, which tended to be crimes of physical force, witchcraft was understood as a crime of words. Testimony was what the witch said to you. Placed in a female understanding. • Continues through 1600s, but then begins to end. Last English execution was in 1684. • The rest of the world was ending witchcraft prosecutions when we get to Salem.

The Articles of Confederation (1777)

• Same Congress who writes Constitution gets together to write AoC. • Each state gets only one vote. • Very limited function of national government. • Thinking about genre: uses a lot of treaty language. • Describe themselves as firm league of friendship. • If problems within the states, bring them before Congress, handle things by arbitration. o Problem with this: to pass anything, you need 9 votes. o To amend it, you need unanimous. o The problem with the unanimous requirement for amendment is: no amendments likely. • No coercive power to raise money. Kind of fuzzes over how they are going to collect money. o Becomes one of central debates at Convention: do you base rights on wealth and power? Do you include enslaved people? • Congress is the one part of our system that is continuous since the Revolution. o But it has lots of problems. • As people get used to this type of government, the Articles of Confederation is not needed. Has no coercive national power. People like James Madison begin to see it filled with problems. o Madison is in the Federalist Society

Beginning of Salem

• Samuel Parris moves from Barbados with two slaves, Tituba and John Indian. • Marries in Boston, decides to become minister, moves to Salem in 1689. • Many people were unhappy with him as a minister - he is very bad at it. • February, 1692: Parris's daughter Betty becomes ill - hallucinations and convulsions. • Tituba is the first one accused of inflicting Betty with this illness. o Young girls had been asking her to tell their fortunes. • People found out about this, and the girls become stricken with some sort of illness or possession that makes them act out and act strangely. o The girls say that it is Tituba at first, but then say that Sarah Good and Sarah Osborne are witches that have been affecting them. • From there, many, many more people were accused Most of which were somehow "outsiders" in the community - they did not conform to the ideals

What evidence is produced to suggest that Susannah Martin is a witch? What patterns appear in the evidence?

• Scratches, marks, bites to people in front of others. • Killed livestock/animals • Animals don't behave well themselves • Laying upon people while they're in bed o Sexual desires may be behind many of these stories • People falling down in the woods. o Could be the result of having too much to drink • Personality doesn't fit - unhappy about father's will, widow, no male sons • Spectral evidence proved a person was a witch - devil sent spectres, evidence of retaliation why witch sent spectre to you • 3 young men said she laid on them in the middle of the night, see footprints outside, cry in night • people falling down, getting home late at night • witches are powerful way to explain something outside the community norm Generally, those accusing Susannah Martin say that she was angry with them for other reasons and then she afflicted them

What evidence is produced to suggest that Susannah Martin is a witch? What patterns appear in the evidence?

• Scratches, marks, bites to people in front of others. • Killed livestock/animals • Animals don't behave well themselves • Laying upon people while they're in bed o Sexual desires may be behind many of these stories • People falling down in the woods. o Could be the result of having too much to drink • Personality doesn't fit - unhappy about father's will, widow, no male sons • Spectral evidence proved a person was a witch - devil sent spectres, evidence of retaliation why witch sent spectre to you • 3 young men said she laid on them in the middle of the night, see footprints outside, cry in night • people falling down, getting home late at night • witches are powerful way to explain something outside the community norm • Generally, those accusing Susannah Martin say that she was angry with them for other reasons and then she afflicted them.

The Second New Deal (1935)

• Second New Deal: o Passed in conjunction with Congress o Well-written to be upheld by the Court o Radically different ideology: Government can't stop the economy from going up and down, but it can have enough of a roll so as to stabilize the economy enough that the bottom is not so bad. o Fixes the places where the economy falls apart: Rural Electrification Act: Allows individual Americans to have electricity to perpetuate an innovative economy. WPA: put people to work Social Security Administration • different perspective, in 1935. o Very shaping of American economy. o Roosevelt and White House reimagine what the federal govt will do. o The later programs advanced by Roosevelt accept capitalism, accept consolidation; they try and stabilize the bottom of the economic cycle. They say we cannot completely regulate and fix American economy; but govt can pick up the places where the economy falls apart. o Instead of persuading industry to create jobs, govt creates jobs. o Create Social Security program. Monthly check beginning when you are 65. o We will pay for electricity, electrify lines, then businesses can come in. o They accept businesses where they are.

Experimentation with Governance - Rhode Island

• Self-government; charter, assembly elects governor (1663) o People leave, but have no political authority (like CT); decide to be completely democratic o One of the first places to positively use the word democracy; solve problems through arbitration o Included two women, many people signed their names with Xs; no religious set of principles o Royal Governor if appointed by the King, Local Governor if CT or

The Missouri Compromise of 1820

• Slavery is sectional • Beginning with the Const and moving forward, everyone had started counting votes - who would control power in Congress. Until the Louisiana Purchase, not a huge problem - admiting states one by one, some free and some slave states, and maintain balance of power in Senate. By 1818, Senate was evenly divided into slave states and free states. 11 and 11. As a matter of national legislation, nobody could move against slavery. • Then they decide Maine will be admitted, so they need a slave state to balance Maine. People become fixated on Missouri. • Missouri is a problem, because it looks like it should be a free state geographically. If Missouri comes in as a free state, it messes up the balance. • Northerners argued that the Republican form of government means Missouri has to come in free. Southerners say that is absurd because it means slavery has to be abolished everywhere. Northers say yep, South says that is crazy. • Compromise: Missouri comes in as a slave state, but from then on, states come in based on whether they are N or S of the 3630 (?) line. • By 1820, slavery has become constitutionally sectionalized. • • The thing that balances the free states and the save states is the Senate because the House is dominated by the South because of the 3/5 compromise. • 1820: Maine and Missouri want to be admitted to the Union. • Question: what to do with Missouri, slave or free? • Compromise: Maine comes in free; Missouri comes in slave and from then on, the 36, 30 line of latitude will be the dividing line between slave and free states. • Because the US did not extend in the Mexican territory, the northern states weren't worried about slavery continuing to expand. • Some people also thought that the Northwest Ordinance showed that Congress had to favor freedom as a national policy. o The whole point of the Ordinance was that the US was a free nation. • For these people, the Missouri Compromise was a violation of that principle.

Divorce

• Some people thought that, as divorce was on the rise, it should be limited by the federal government. • The West was like Canada for women who were in terrible marriages because the western states liberalized the reasons for which you could get a divorce. o Allow divorce for cruelty, mental and physical abuse. • Other people see divorce as a possible way for men to walk away from the family, so they are worried about divorce

The meaning of the War

• Someone who died to pay for the sins of the Union. • Prior to this time, the country had been dominated by the Southern slaveholders - all aspects of national government. • After Lincoln, no Southerner president for another 100 years. • April 14: John Wilkes Booth shoots Lincoln, 150 years ago. • Set of conflicts about meaning of war. • Gettysburg Address - Lincoln is right in some ways. After CW, it will be another 100 years before we have another southern president. The Southern vision of the country ends completely. • Lincoln has come to believe that ONLY ending slavery can make up for the loss of life. • Frederick Douglas: says Lincoln was a white man's president, but dear to black people. He was deeply conservative on questions of race and slavery, but nonetheless got to a place of freeing people. Douglas gave him credit for that; understood how reluctant he had been. • Walt Whitman: asked the question that would be taken up by next generation: Were you loking to be held together by lawyers? ... from poem. • How do you move beyond predominantly white vision of the US? We will do that on Wednesday.

Life in Europe: "Age of Exploration"

• Spain, Portugal, Holland, France, England (last); all about spice route • Mercantile economy; have to find raw materials and bring it back • Like people out in California trying to get rich as fast as possible. You didn't inherit a lot of money; there were very few jobs that would make a lot of money; but in exploration, you might gain the riches. • They begin to explore the coast of Africa and then expand beyond that. Columbus sails down that, crashes into Central America-ish, and claims it for Isaella. Beginning of the notion that you can sail into that area and claim it for the crown and be rewarded. • The rise of the nation states - rulers who had run smaller areas are being identified with broader regions and want more national power. They want to keep up with everyone else. They need money - cannot print it like now; need raw materials. So a lot of this is pushed by the search for gold. And eventually realizing you can import/export a lot of stuff. • What gives Christians the right to do this? religion justified a lot of acts.

What is the legal understanding of the corporation? How does it relate to the legislature and the public?

• Special Incorporation from the legislature o Great way of raising fees and taxes.

What are Federalist responses?

• Specific Points o Factionalism (Federalist 9+10) Madison argues that a faction is a group of people who put their interests above the common good. Large government can soften the influence of factions by encompassing a variety of interest groups, they will balance themselves out so that the common good rises to the top. Therefore, none of the bad things that the opponents think are going to happen will actually happen. Really good analog to modern political theory. o Lifetime appointment of judges Federalist 78: Single most famous thing ever written on the American judiciary What the Judiciary needs to do it check the legislature, and unless they have lifetime tenure, they will not have the security necessary to allow them to check the legislature in that manner. "Ambition to counter ambition"

What are objections to the Constitution?

• Specific Points o No Bill of Rights o Senate had too much power o President doesn't have Councilors/Advisors Legislature might become very powerful Heads of the great departments would become an informal set of advisors o Vice President, as President of the Senate (and tiebreaker) blurred executive and legislative functions - against separation of powers. This is why, in modern society, the VP almost never becomes the tiebreaker. o Single Appellate Court in one central location favors the rich only and isn't available to the common folk. o Treaty Power - as long as the President deems something a "treaty," he can do basically whatever he wants. o Term limits are necessary - everyone will be re-elected. • The anti-federalists were totally right that the Constitution couldn't plug all the potential holes in a federal government of this scale. • Hard to respond to these arguments, because they had to admit these were legitimate gripes, but what would be better?

Frederick Douglass, "What to the Slave is the Fourth of July" (1852)

• Speech given in Rochester, NY. Fourth of July is a reminder of what the slaves are victims of. The interstate slave trade is an inherent and brutal part of the slave trade - particularly in Washington, DC. • The slave trade is also horrible to those who come from other parts of the world where they had already outlawed it. What does it mean to be a Christian: It means you cannot support slavery. Constitutional Argument: By its design, it does not support slavery, it supports freedom, liberty, no single pro-slavery clause. Thus the Constitution cannot be a pro-slavery document. You have to read the Constitution together with the Declaration in order to fully understand it.

The meaning of Dartmouth College (1819)

• Stands for all sorts of things. • Dartmouth College run by Federalists / one side of religious divide. The politicians who run New Hampshire think Dartmouth should be a state university. • They grab the charter, say there will be new members of the board (the founders; Good trick to know - expanding the board - thing that governors do in modern era to quasi-public things. Expand the board and appoint your own people. • The courts in NH say the school is public - it only exists because we say it exists; so if we want it to be a school everyone can go to, so be it. We gave you the charter. • Case shows the beginning understanding - how to think of the corporation as something apart from the state, while still understanding it is there for public purposes. Slight pulling away - but not entirely, because Joseph Story is too smart for his own good. Writes concurrence: "the reason we know for sure that the legislature can't do this is because they didn't say they could do it in the charter." so if legislature thought it could revoke the charter, it would say so in the charter. After that, every legislature gives themselves the power after it - every charter has revoking clause after this.

Experimentation with Governance - Virginia: corporation

• Starts out as trading company, Merchants of Virginia; sail to VA because convinced there is goal. • Have early charter, and it is a failure. • So they create a second charter, saying they can impose martial law and no one can look for gold on their own. • Then they send women indentured servants over; also not successful in making people stick around. • Third charter. • Ordinance and Constitution of Treasurer and Company in England for a Council and Assembly in VA (1621) • They create what becomes a House of Representatives

Catherine Beecher, Treatise on Domestic Economy (1841; 1846)

• Teacher; urged the training of young women in domestic science and teaching. • Founded the Hartford Female Seminary in 1823; later opened Western Female Institute in Cincinnati, OH. • This was her major work; went through 15 editions.

The early 19th century understanding of the corporation: What was a corporation?

• The Body Politic: Category of things, such as states, nations, corporations, that involve the grouping of people. • Not thought of as public or private, but just as an organizational structure. • English still prefer partnerships; body politic; quasi-governmental structure; MA had many corporations • We think business, they thought as a way to organize; MA had more corporations than Europe • English thought corporations would absorb political power; immoral; US used to corporations/charters • US thought it was particularly good in democracies; way for people to get together to achieve big things

Cherokee Nation v. Georgia (1831)

• The Cherokee sought to enjoin Georgia from enforcing laws passed in 1828 and 1829 within the Cherokee territory. Laws claimed to annul Cherokee land and authority and to annex the land to GA. • Federal troops declined to protect the Cherokee and instead offered their support to Georgia. • Injunction, no individual to base the case on. o No jurisdiction here, because the Cherokee are not a foreign nation, and so SCOTUS can't hear the case. o However, Marshall hints that the Court might have ruled for the Cherokee on the merits. Calls them a domestic dependent nation. o Baldwin dissents, saying that the judge's job is to stick to the law and not to fall prey to their emotions and public opinion. We will pick back up with this in abolition cases.

The End of the Civil Rights Act of 1875

• The Civil Rights Act was pushed through by Charles Sumner (a MA legislator) • It was understood that the government could not get into the home, but wanted to provide protection for public spaces • Originally included churches, cemeteries, and schools • Must give full enjoyment to everyone • Hayes-Tildon Election • Hayes was the republican candidate and won the election • Tildon won the popular vote (because they suppressed the Southern vote); but was 1 vote short in the electoral college • Vote went to Congress, electoral commission was made up of 8 republicans and 7 democrats • Deal at Wormley house • Hayes comes in to power and they pull all military power from the south • In the shift the Civil Rights Cases go up to SCOTUS

How is the corporation changing?

• The Corporation at the Time o At this time, the corporation is expanding drastically E.C. Knight had 98% of the sugar market, for example. o Moreover, the corporation also had spread into other business ventures than the small, unique venture. o The corporate charters had changed: No need for a special charter of the state Just need to be a lawful business within the state and you can become a corporation. NJ Law: Allows corporations to hold the stock of other corporations. They can also use their own stock to purchase that stock - no cash required. • Until the 1890s, most corporations were governed at the state level and they were still regulated by specific charters issued by state legislature. They were also not allowed to operate outside of their state borders under that original charter and they could not hold stock in other companies. • After the war, people who had begun to make money during the war pushed against these boundaries.

Case of Hall - 1629

• There was confusion as to whether Hall was a man or a woman. • The law is interested in hermaphrodites because males had property rights and inheritance rights, whereas women do not. o Still a question today in Olympic sports. • Hall decides at times to appear like a man at times and like a woman at other times. o This, for him, was often based on his economic capacity to survive - doing needle work as a woman when that job is available. • This case came about because of rumors that Hall slept with a woman, but that he also walks around in women's clothes. • People repeatedly arrest him and physically check him for which type of genitalia he has. • Again, this is only an issue and a case because it is offensive to the community to have someone of an indeterminable gender. • Resolution: o The court publishes that Hall is both a man and a woman. o The Court also forces Hall to dress as a man and a woman at the same time. This completely marginalizes/ostracizes Hall from the community. He will never be able to fit into either of the gender communities. o This protects the community rather than Hall, because it is a deterrent to other hermaphrodites and because no one will accidentally sleep with Hall or interact with him as a full-blooded male or female again. • Cross dressing/gender confusion; lots of switching of occupations and clothing; no bodily privacy • Possible way of having full gender opportunities; possible hermaphrodite; matters when law is gendered • to figure it out, the repeatedly physically examine the sexual organs. To imagine this world, you have to imagine what that is like. Bodily person is not private. No warrants, etc - we can rip off your pants and try to figure out what you are. There is a line here (like the line about beating her in Howard) - bodily privacy is different from what we experience. For people who have been strip searched, or even the creepy TSA search, can understand a little - physical body not owned by person. Line between public and private is written out differently. • Decision: has to dress as man, but wear a cap like a female and an apron. Makes him totally an outcast. In a world with strong binary distinction, community does not let Hall move back and forth.

South

• There were abolitionist societies in the south, but they were not very popular or successful. • The American Colonization Society was more successful, however. o Founded in 1819. o Idea was to remove free blacks to Africa. Reverse colonization. o They thought this would encourage manumission. o The issue was that free blacks were confusing the societal structure in the South where blacks are considered slaves inherently. There was no way of living in a mixed race society. o They found Liberia and send a few thousand people to the nation.

What discussion of a bill of rights?

• They introduce the Bill of Rights idea at the end and suggest that it goes to committee. • This happens at the very end of the convention, however, and everyone is tired and done with the task. • Thus, the motion loses 10-0 - one of the few unanimous votes at the Convention.

May 1787 in Philadelphia

• They liked Philadelphia because more people showed up; it was more familiar ground for most people. • RI never sent a delegation. Prominent RI-ers wrote a letter saying don't take it personally. • NH does not arrive till July. When it arrives, it shifts all sorts of votes at the Convention. • There are few people who actually wrote the Constitution; many were elected, but few came; on any given day, less than 30 there. in Aug - Sept, when important decisions made, many were made by 5-person committees.

The Realities of the Early Judiciary

• They only heard 2 cases in the first session. • Washington said they should give advisory opinions. Because they had no purposes. Sometimes state courts will give advisory opinions. But they said no, they wouldn't. • Congress passed bill saying they had to decide military pensions. Court said no, that's not our job either. • Nobody takes notice of their opinions in the beginning, they are so unimportant.

Regionalism and Law

• Things play out differently in the South than they do in the Northeast • The ideal family mirrored the political and religious values of the community in which that typical family lived

"Dred Scott II" - Lennon v. the People (NY)

• This argument: People held as property are property under the 5th Amendment and to abolish someone's 5th Amendment right to hold another person is a violation of the Constitution. • Even if you took someone to a slave state and stayed there for 50 years, the person would still remain a slave. • If this case made it to the SC, that is likely how it would have come out

The new law school

• This is the moment legal education really takes off. • Harvard starts teaching based on casebooks, producing casebooks. • BU is founded in protest of the case method at Harvard. • The rise of law reviews - all people doing the case method around law on their own. Very removed from practice. They move to having people teach who have never practiced - so you can get things into people's brain very quickly, without experience stories. • Association of American Law Schools, founded 1900 - want everyone to do case method. • Study law At Home: there remain ways to get in without study at law schools, but becomes dominant method.

How is legal education changing? What advantages? What is Holmes' critique?

• Thus, law schools adopt the case method - you can learn law quickly and (then) inexpensively without getting bogged down in the details. • THUS, LAW SCHOOLS FLOURISH Rise of the case method Holmes Believes Langdell is all in his head; law is not logic, but experience; changes over time Good for law school though; way for students to understand efficiently and effectively; just not real

What does Winthrop's speech suggest about the role of women, marriage, family, and public governance?

• Women have no ability to consent, she is not a part of the bargain beyond the original moment of choice as to who is her husband. (Even though that choice was often more illusory than not) o Once she chose, she must then accept the covenant that she signed onto, just like the covenant between Moses and God Two kinds of liberty: natural and civil; civil is between man and God, duty to abide by God's words Civil is like a contract, like when a wife marries her husband; her liberty is to give away her liberty Same guy who talked about rich and poor classes; underneath, the belief of need for consent Today, parents given authority over children; spanking less okay now, but used to be fine o Part of submitting to the magistrate's authority

Madison and Paper Barriers

• We owe him the fact that we have rights. • He lost run for Senate, and now wants to run for House of Reps. His friends tell him he has no chance because everyone thinks he is against rights. He then promises that if elected, he will make sure the Constitution is amended to include rights. He gets elected, and goes on to fulfill his arguments. • He is influenced by correspondence with Thomas Jefferson, who thought it was a mistake that the Constitution not have rights. • Jefferson opinions: • Legal check on the legislature. This gives the judiciary a job, and it makes the rights be taken more seriously. • If we cannot secure all our rights, let's secure what we can. Do not fret about the enumeration issue. There is a reason to have rights, particularly in this govt. • Madison is influenced by this. goes into Congress in June, and suggests amending the Constitution. He gives very long speech about it. Very important congressional speech. He basically drafts the amendments himself, and explains in enormous detail what he thought the amendments would do. There is almost no legislative history on the passage of amendments. • He says there is a reason for the 9th amendment. He says it is the key to the whole thing. It says the rights enumerated are not exhaustive. This solves the big problem with writing down the Bill of Rights.

How does the idea of rights proposed in these materials differ from our own?

• We think of Amendments of rights. • Much critique by opponents focused on the lack of Bill of Rights. • In their experience of rights - the King gave them to you.

What vision of the law and the judge appears in Maud Muller?

• What does this poem say about law in the post-war era? o The law doesn't help people, it sees the injustice, but it is inert and fails to do anything except perpetuate the status quo.

e.e. cummings, next to of course god (1926)

• What is going on in the poem? • First line: • God, America are the same / next to each other • Taking for granted that we all love God • America and God as different concepts • Could be returning veteran: these are the things I was told, then let me tell you what really happened. • Beaut-iful is broken up

How do the signers understand legal authority and the governed community?

• Where does the authority come from? o Those who signed it and those for whom they are signing (women/children) Women, children, some servants did not sign the document. • This is not a radical democracy. They explicitly accept monarchy on multiple occasions in the document. • Completely radical. According to Bradford's account, all men on the Mayflower signed it, regardless of whether they were members of the religious order.

Selective incorporation

• Which rights applied to the states through the 14th amendment?

How did the law of coverture define the family and gender relations?

• While married, H and W are one. W is technically protected by H. they are one person. She becomes legally dead. Cannot write a will, cannot buy property in her name, cannot sue in her own name, cannot be sued. David Mackie et. ux. Means "and wife." • H has authority over W. physical, legal authority. • Pieces of that extend into our world.

Walt Whitman, "Over the Carnage Rose Prophetic a Voice" (1865)

• Whitman's poetry attempted to grasp what it meant to be an American. • Believed poetry did not need to follow set patterns and rhymes.

The Taft Court: the modern court (1921 - 1930)

• William Howard Taft, previous president was appointed to Chief Justice after his tenure in the White House - 1921. o Importance Builds the new Supreme Court building. Really makes the Supreme Court their own branch of government. o Jurisdiction Gets rid of almost all the mandatory categories that the Supreme Court had to hear. Instead, the Supreme Court hears things almost always by discretion alone. become as important as the other branches. • Just like politics, the Court ignores race but is progressive in other ways. • Third branch imagined as co-equals; from mandatory to discretionary review; Judiciary Act of 1925

The Cherokee cases

• William Wirt argues on behalf of the Cherokee. o The Cherokee didn't have money to pay him, but he took the case anyway. • The more the Cherokee started using tools of white people, the more dangerous they became to GA. They are the only tribe in 19th century that has the ability to mount challenges in court. • When we turn to late 19th c, we see the same struggle; by then, other tribes can get to Sup Ct, but with no greater success. • A theory among con law people is that the Court is constantly aware of its inability to enforce its decisions. If the executive branch completely doesn't agree, court cannot enforce. • Court's enforcement power comes from its moral authority as a Court, so they are protective of that authority. So sometimes the court is ahead, and sometimes behind, of where they think popular opinion is. Some sense the court had about the press, political figures. This line of constitutional theory often tracks back to the Cherokee cases, where the Court decides GA cannot do something to the Cherokee - but the executive goes ahead and helps remove them.

Rise of legal aid

• With the turn to the large legal practice begins the turn to legal aid. • 1919-1920: ABA develops a committee that declares that lawyers should give some of their time to pro bono work. • At the same moment, comes the rise of legal aid. • At the same moment legal profession/education and problematic aspects are developing, legal aid is developing. • Legal Aid Society of NY, 1876; Chicago, 1886. • Turn to organizations to help the poor • Reginald Heber Smith takes over Boston Legal Aid Society, 1914: writes Justice and the Poor; goes to the ABA under Charles Hughes, and ABA creates Speical Committee on Legal Aid work; ABA starts to talk about the importance of legal aid being part of people's career. • Smith, ironically, comes up with the idea of the billable hour.

How does Catherine Beecher understand the role of status and women?

• Women have a choice in this society - they don't have to get married, but when they do, they buy into this system and subject themselves to the role of the subservient. • It is for women's benefit that they are subordinate - women's interests are actually promoted from this position in society. o Equal in interest, but treated as superior in life. o More powerful in the domestic sphere. • Repeats the argument that women craft the morals of the men of the nation and thus have a lot of control over the direction of the country.

Women's Public Participation

• Women's Club Movement: After the civil war, many women join social clubs and organizations. Originally this was a white woman's movement, but eventually black women become involved as well. o Increasingly taking up social reform issues. • Women's Temperance Movement: For women, temperance is an issue about finances (loss of a man's paycheck to bars) and domestic violence. o The Liquor establishment fears women's vote for this reason. • These types of organizations make women think that they can work in the public sphere and have influence. • Women also start going to college during this period. o Barbara Scotia - first college for African American women. o Swarthmore - first co-ed private institution. o For much of the late 19th century, women's education expanded and was very important • Women also began working outside of the home o By 1890 - 500k women in teaching (often in schools founded by the Freedman's Bureau) o Medicine begins to be an occupation o By 1890 - 17% of workforce is women. o Particularly true for immigrants to the US. • Most importantly for women - Technology makes domestic tasks easier and less time-consuming o Sewing machine o Electric lighting o Washing machine o Telephone o Etc.

Citizenship

• Women, for a long time, lost their citizenship when they married a non-citizen. • However, with the Cable Act, that changed for those marrying citizens of nations from which people could be naturalized. • Exception: Asians were still prohibited from immigrating in many cases, could not become citizens, and so if a woman marries an Asian during this time, the woman loses her citizenship.

Ideology of English power v. American liberty

• Writers in colonies told a narrative in which the whole history of Anglo-American life had been power oppressing liberty. • Back when the Normans took over, told story that politics was the struggle of power against liberty and you always had to be on guard. • You could not take liberty for granted. • In the US, people read these writers and thought they spoke the truth. • Americans experience everything the British do as examples of power against liberty. • Declaratory Act: British say they have power to make all the laws. • Executive - Royal Governors started getting funded by the British. • Vice-Admiralty Courts: British prosecuting Americans for smuggling; no jury • Crispus Atucks killed by British officers • Boston Tea Party • Quartering troops • All these things were sensible to British; to Americans they fit a narrative.

Carolene Products (1938) footnote 4

• Written by Louis Lusky, not actually by Harlan Stone • Three Regimes - Defer to legislation except where: o Bill of Rights implicated o Political processes cannot be relied upon to fix this o Discrete and Insular Minorities, racial, national, and religious minorities

The Virginia Declaration of Rights

• Written in 1776 by George Mason; adopted by the VA Constitutional Convention. • Widely copied by the other colonies. • Became the basis of the Bill of Rights and the Declaration of Indepednence. • Virginia's Declaration of Rights foreshadows the Bill of Rights. o More aspirational, however, than imperative/present tense. No real limitations on the government. o Large and descriptive. Not really "core" rights. o They have some things in there that we wouldn't consider core rights in the Constitution - fishing and fowling, education

What does the 12th Amendment make possible? How does it alter the meaning of the Constitution?

• Written in a moment where people did not understand there would be... political parties. • Basically says, your party runs someone for president and someone for VP. Constitution bars elector from voting for Pres and VP from their own state. you cannot run two people from the same state, or nobody in that state would be able to vote for them. • Run of two-term presidents: Jefferson, Madison, Monroe. • Hamilton was right about Jefferson - Jefferson becomes obsessed with preserving his own reputation; immediately purchases the Louisiana Purchase from Spain • People are not sure he has power to do this; he says that he does. • Era of Good Feelings

Mayflower Compact

• Written on board; signed by 41/102 passengers. • All signers appear to be men, and all men on board signed. • 37 were members of Separatists fleeing religious persecution in Europe. o Constitutive document o Said that power comes from the people - creates rules to govern o People themselves have ability to make governing structures o The Pilgrims signed this compact while still on the boat. • This could raise questions as to whether this was 100% consensual, or whether the situation may have been coercive.

Charles Brockden Brown - Alcuin; A Dialogue (1798)

• Wrote a number of novels, set in the American landscape and which concentrated on the psychological search for the moral self. • Book is written as a dialogue between Alcuin and Mrs. Carter. • Begins by Acluin asking if she is a federalist; she notes that "women are known to be shallow and inexperienced" on political questions • Then moves into more complex conversation about the role of women. • Mrs. Carter argues that it is life opportunity and not a woman's sex that alters how her life comes out. o Education would help them move up in the world, but they don't have the opportunity. • Alcuin also argues that women being at home must be relaxing o Mrs. Carter says that that is not true. Rather they have to work very hard at home and/or have a job and be in the workforce in some respect. o Alcuin's argument may only be true for the most wealthy • Mrs. Carter also says that she has no political positions because she has no vote and therefore cannot influence society in that way. o Alcuin argues that she has control over the domestic sphere and can influence men from that position o Because of coverture, however, where women lose their property and their individual capacity at law, women cannot completely tell their husbands/sons/fathers how to act in the public sphere. o Women accomplish things in this era by entreaty and not by force. • Alcuin says that women are naturally unsuited for the practice of law, head of state, or a leader on the battlefield. o He says that women do not publically speak, nor should they because they are not used to speaking forcefully in front of people or leading.

William Bradford, History of Plimoth Plantation

• Wrote historical narrative between 1630 and 1650, while Governor of Plymouth Colony. • Elected governor after John Carver died and left the colony without a governor. • Disease caused deaths of 13/24 heads of family and 20 of their wives. • Scarce population, low supplies. • Attested colony's survival to the help of Samoset and Squanto, unexpected success with new corn crops, and beneficial rains, all of which he further ascribed to God's divinity. • Refers to Separatists as "saints" and other English as "strangers"; American history refers to entire group as Pilgrims. • Describes arrangements the Separatists made with their investors, with each other, and with the Wampanoag. • crown delegated authority under the charter o Successful; in Holland one generation, leave for Virginia, end up on Cape Cod, outside authority o Say they get political authority from King; covenant and combine into a civil body politic; totally new o Power to govern selves; problems: no women, pre-disembarking; still explicitly accepted monarchy o No original remains of the compact; they were separatist radicals o Stock in Mayflower corporation two ways: buy or pledge yourself (and wife and kids); 7 yr joint venture o Pilgrims would have died w/o Indians help; they knew English beforehand; had been to England/slave

i. Background to witchcraft - King Philip's War: 1675 - 1676

• Years right before Salem. Last significant warfare with Woampanoake and other tribe. • King Philip took the name Philip; was son of Massasoake; born Metacomet; had become convinced that no matter what the English said, they were pushing the tribes outward. Began to gather other tribes who felt under pressure from English settlers. Fighting broke out. • Tribes westward begin a series of attacks. • Creates anxiety - at any moment, the tribes may attack.

i. King Philip's War: 1675 - 1676

Location of Authority: Charter:

• crown delegation by written document o "Endecott Charter" for Massachusetts (1629) o Charter from Edward IV to City of Rochester o Salters Company Charter from James I o Give authority. o Magna Carta or Magna Charta? Ch emphasizes the charter aspect of it; when the English settlements get charters from the king to clarify that they have political authority over those areas - the think of it as a charter that has within it liberties and rights. Instead of thinking about it as a grant that can be taken back. o Charters: 1662-63: Rhode Island, Connecticut, Carolina o The King created these - different from constitutions, created by the people. o Delegation of authority from the top down. Produces one important line that will support what becomes tradition of written constitutions.

Witchcraft Explanations - Gender

• exciting in the beginning to be possessed for a lot of these young girls. Women who were accused did not conform to the accepted female behavior, although many men were also accused. • Women were dominant people accused. • Book: The Devil in the Shape of A Woman

Location of Authority: Compact:

• self-created authority by written document • counter-theory of authority

The Souls of Black Folks by W.E.B. DuBois (1903)

• writes on the Freedman's Bureau o He asks whether things could have gone differently than they did after 1865 and the end of the war. o He begins by asking what the meaning of race is in America. o While the nation could abolish slavery, they couldn't get rid of the underlying racial tensions and differences that persisted.

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