Wednesday, February 28, 2007
NATIONAL WAR POWERS COMMISSION
Former Secretaries of State Baker and Christopher to Lead Bipartisan Group to Examine Constitutional Issues
The Miller Center of Public Affairs at the University of Virginia today announced the formation of the National War Powers Commission, a private bipartisan panel led by former Secretaries of State James A. Baker, III and Warren Christopher.
The Commission will examine how the Constitution allocates the powers of beginning, conducting, and ending war.
When armed conflict is looming, debates about separation of powers and the uncertainty they often generate can impair relations among the branches of government, cast doubt on the legitimacy of government action, and prevent focused attention on policy. Armed conflicts with non-state actors and other non-traditional "wars," as well as the courts' involvement in war powers questions, make the Commission's work relevant.
"Few matters are more important to our nation than how we make decisions of war and peace," said former Virginia Governor Gerald L. Baliles, Director of the Miller Center. "But war powers questions have bedeviled a host of Presidents, members of Congress, and judges for more than two hundred years. With its wide-ranging experience, this Commission is uniquely qualified to attempt to provide insights into how best to resolve these difficult questions."
Commission Co-Chairs Baker and Christopher have worked with Governor Baliles to assemble the group (in alphabetical order): Slade Gorton, former U.S. Senator from Washington; Lee H. Hamilton, former Member of Congress from Indiana; Carla A. Hills, former U.S. Trade Representative; John O. Marsh, Jr., former Secretary of the Army; Edwin Meese, III, former U.S. Attorney General; Abner J. Mikva, former Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit; J. Paul Reason, former Commander-in-Chief of the U.S. Atlantic Fleet; Brent Scowcroft, former National Security Advisor; Anne-Marie Slaughter, Dean of the Woodrow Wilson School of Public and International Affairs at Princeton University; and Strobe Talbott, President of the Brookings Institution.
Pulitzer Prize-winning historian Doris Kearns Goodwin will serve as the Commission's historical advisor. John T. Casteen, III, President of the University of Virginia, and David W. Leebron, President of Rice University, will serve as ex officio members. John C. Jeffries, Jr., Dean and the Emerson Spies and Arnold H. Leon Professor of Law of the University of Virginia School of Law, and W. Taylor Reveley, III, Dean and John Stewart Bryan Professor of Jurisprudence at the William & Mary School of Law, have been named Co-Directors of the Commission.
The panel is expected to convene its first meeting April 3-4.
The James A. Baker, III Institute for Public Policy at Rice University, the Freeman Spogli Institute for International Studies at Stanford University, Stanford Law School, the University of Virginia School of Law, and the William & Mary School of Law will serve as partnering institutions.
For more information, click here.
In terms of methodology, this essay traces a parallel between the themes of international law and the short stories of Yiddish writer I.L. Peretz. In particular, the essay uses as a parable Peretz' short story "Yom Kippur in Hell", in which a cantor who chants with a beautiful voice, but who is substantively lacking in devotion, is condemned. It is the theory of the essay that the futility of salvation through empty prayer neatly parallels the futility of progress through empty doctrine, as exhibited by international law.
John Phillip Reid Book Award 2007
Named for John Phillip Reid, the prolific legal historian and founding member of the Society, and made possible by the generous contributions of his friends and colleagues, the John Phillip Reid Book Award is an annual award for the best book published in English in any of the fields broadly defined as Anglo-American legal history.
For this year’s prize, the Committee will accept nominations from authors, presses, or anyone else. Nominations for this year’s prize should include a curriculum vitae of the author. Nominations should be submitted by May 31, 2007, via e-mail, to the secretary-treasurer of the American Society for Legal History, Professor William P. LaPiana
57 Worth Street, New York, New York 10013 (212-431-2883).
In addition, a paper copy of the book should be mailed to each of the following:
Professor William Nelson
New York University School of Law
40 Washington Square South
New York, NY 10012
Professor Christian G. Fritz
University of New Mexico, School of Law
1117 Stanford Drive, N.E.
Albuquerque, NM 87131–0001
Professor Richard Helmholz
University of Chicago, School of Law
1111 East 60th Street
Chicago, IL 60637
Professor Annette Gordon-Reed
New York Law School
57 Worth Street
New York, NY 10013
More information about the Reid Prize may be found on the Society’s website, here.
There is much more, but Hafetz's bottom line is in his conclusion:
To begin with, the D.C. Circuit treated as an open question whether the writ would historically have extended to a territory like Guantanamo, where the United States exercises complete and exclusive jurisdiction and control, but not sovereignty. That question, however, was already answered by Rasul v. Bush (542 U.S. 466 (2004)). There, the Supreme Court concluded that the “[a]pplication of the habeas statute to persons detained at the [Guantanamo naval] base is consistent with the historical reach of the writ of habeas corpus.” Importantly, in Rasul the Court rejected the government’s argument that the writ’s reach at common law turned on territorial sovereignty rather than on “the practical question” of the crown’s control over the particular territory. The Court relied, for example, on King v. Cowle (97 Eng. Rep. 587 (K.B. 1759)), where Lord Mansfield explained that the writ would run to territories “under the subjection of the Crown.”
Ultimately, the most compelling historical argument against the MCA is that the concept of a law-free zone at Guantanamo contradicts the writ’s essence as a check against unlawful executive detention. The notion that the President can maintain Guantanamo as a prison beyond the law based on the legal fine print of sovereignty is antithetical to the basic principles habeas corpus and the Suspension Clause embody. It does not take a historian to recognize this much.For the rest, click here.
Tuesday, February 27, 2007
The Committee on Research Awards and Fellowships of the
EMPIRE: THE RISE AND DEMISE OF THE BRITISH WORLD ORDER AND THE LESSONS FOR GLOBAL POWER. By Niall Ferguson. New York: Basic Books. 2004.
CONSTITUTING EMPIRE: NEW YORK AND THE TRANSFORMATION OF CONSTITUTIONALISM IN THE ATLANTIC WORLD, 1664–1830. By Daniel J. Hulsebosch. Chapel Hill: The University of North Carolina Press. 2005.
A JURISPRUDENCE OF POWER: VICTORIAN EMPIRE AND THE RULE OF LAW. By R.W. Kostal. New York: Oxford University Press. 2005.
THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11. By John Yoo. Chicago and London: The University of Chicago Press. 2005.
Here's the abstract:
This essay reviews four books that, among the spate of books on empire in the past few years, shed especially illuminating light on the law of Anglo-American empire during the past three centuries. Part I describes the central tenets of one of the new poles in the early-twenty-first-century constitution of empire: the idea of the imperial executive as advanced by the constitutional lawyer John Yoo in his book, The Powers of War and Peace. Part II turns to two historico-imperial analogies that animate arguments for the imperial executive; in particular, Part II addresses lawyer-historian Daniel Hulsebosch’s Constituting Empire and historian Niall Ferguson’s Empire in order to assess the strengths and limits of analogies between the governance of the British Empire and the idea of the imperial executive. Part III takes up A Jurisprudence of Power, a book by historian R.W. Kostal on the martial law controversy in Jamaica in the 1860s. Kostal’s implicit suggestion is that the overarching continuity in the Anglo-American law of empire over the past 150 years has been the centrality of legal language in moral argument about empire and its virtues, vices, and exigencies. Part IV compares the British imperial constitution with its American counterpart in the early twenty-first century.
The conclusion relates the constitution of the British Empire to the U.S. Supreme Court’s efforts — successful or not, we cannot yet know — to rein in the poles of the debate and to establish boundaries for the legal frame of Anglo-American empire. The Court’s great challenge is that the institutions and discourse of American constitutional law make available a much wider array of possible moves in constitutional argument than the U.S. Constitution’s British antecedents ever did.
For the review itself, available on-line, click here. For a recent review of Kostal, A Jurisprudence of Power, in the Law and Politics Book Review, click here.
The greatest concern is that the film fails to explain why the Japanese felt the need to defend a seemingly insignificant island so fervently – the fear that the firebombing of Japanese cities, already devastating to civilians, would intensify were the Americans to gain Iwo Jima as a launching pad for air strikes. In not explaining this background, viewers felt that the film catered to the stereotype of the Japanese as lemming-like fanatics.
For the rest, click here.
As part of its 50th anniversary, American Heritage magazine ranked "White Over Black" as the second-best book of all time in African American history, second only to W.E.B. DuBois' "Souls of the Black Folk."
Monday, February 26, 2007
UNITED STATES HOLOCAUST MEMORIAL MUSEUM
Center for Advanced Holocaust Studies
2007 SILBERMAN SEMINAR FOR LAW FACULTY
“The Impact and Legacy of the Holocaust on the Law”
June 4-15, 2007
The Center for Advanced Holocaust Studies of the United States Holocaust Memorial Museum announces the 2007 Silberman Seminar for U.S. law faculty teaching or preparing to teach courses on constitutional and international law and related legal fields, who endeavor to draw lessons from or develop themes based on the Holocaust and other genocides. The objective of the 2007 Silberman Seminar is to strengthen participants’ knowledge of the impact of the Holocaust on the development of domestic and international law.
This looks like a superb opportunity. For my previous post, with more details and links, click here.
In THE INSULAR CASES AND THE EMERGENCE OF AMERICAN EMPIRE, Bartholomew H. Sparrow offers a detailed account of the Supreme Court’s handling of the numerous constitutional questions created by the emergence of an American colonial empire. A political scientist, Sparrow has produced an impressively researched and detailed work of political and legal history that accomplishes three significant tasks: first, it situates the decision to acquire overseas colonies within its contemporary political context and within the larger context of American territorial expansion; second, it describes in detail, analyzes, and offers an account of the public reaction to the thirty-five cases he classes among the Insular Cases; finally, it draws some conclusions about the nature of the empire America acquired at the turn of [*177]the twentieth century, parts of which it continues to administer today. Sparrow’s largest ambition for the work is “to move the Insular Cases back into prominence, to encourage their return to the legal ‘canon’ of Supreme Court cases -- that is, to add them to the list of recognized Supreme Court cases essential for and familiar to students of constitutional law and U.S. political history” (p.10).
Sparrow’s account charts the path traversed by the Supreme Court and by the American polity from its initial state of bitter conflict over the constitutional status of the insular territories to the emergence of a consensus that has become so comfortable that the Insular Cases, which loomed so large when they were first decided, have now fallen into that obscurity from which Sparrow seeks to rescue them. Sparrow aims to unsettle complacency about the constitutional status of our remaining colonial possessions, both by reminding us of the powerful arguments for the constitutional roads not taken and by drawing attention to the moral ambivalence of the constitutional resolution we have reached.
The Vietnamese Woman, Warrior and Poet: Duong on the History, Culture and Legacy of Gender Equality in Vietnam
Exploration of women's issues in Vietnam strengthens the emerging voice of the “exotic other female” in contemporary international feminist discourse. Any women's movement in Vietnam today must be caste as the revitalization of the Vietnamese women's collective cultural identity, rather than as a Western imported feminist doctrine. The Vietnamese women's collective cultural identity is based on the history and cultural folklores of Vietnam, including expressions of feminist ideas in law and literature and a long history of warfare and collective sufferings, wherein women have been seen as martyrs, national treasures, and laborers in war and in peace. The advocacy of gender equality in Vietnam today is limited by eight “risk factors.” First, Vietnam's strong matriarchal heritage that persisted through its early history has at times led to the disingenuous proposition that Vietnam has no need for a feminist movement. Second, Vietnam's repetitive, prolonged war and poverty have together overshadowed gender issues. Third, women's movements in Vietnam have not evolved into a doctrine with a structured basis that is independent from nationalism, socialism, or literary movements. Fourth, gender equality in Vietnam has become entangled in what this Article describes as the “fallacy of a trio,” in which gender equality becomes synonymous with nationalism and socialism. Fifth, the rule of law in Vietnam has traditionally been considered secondary to customs derived from the oppressive values of Vietnamese Confucian society and the autonomy of the Vietnamese agricultural villages. Sixth, women's rights advocacy has been caught up in the “universality versus cultural relativism” discussion, further complicated by the question of whether there should be “Asian-styled gender rights” in Vietnam. Seventh, Vietnam, despite its age, is a new nation with a wide variety of philosophical bases, legal traditions, and paradoxical values. Finally, the single-party political system of modern Vietnam renders any feminist movement susceptible to Party politics. The limitations on advocacy for gender equality are illustrated by the shortcomings of Vietnam's Year 2000 National Action Plan, which attempted to address women's issues in the aftermath of the United National Fourth World Conference on Women held in Beijing in 1995. While the reassertion of cultural identity can effectively empower Vietnamese women, the feminist advocate must approach cultural identity with caution in order to avoid the semantic traps of euphemism, empty ethnocentrism, and unhealthy preoccupation with the past that can impede progress for the future.
Sunday, February 25, 2007
So writes Niall Ferguson, Harvard history professor, in today's London Sunday Telegraph, my airplane reading on the way home today. "Hatred of America Unites the World," is the op-ed's headline, but what is interesting is, as Ferguson puts it, the question of "who hates Americans the most?" It's not the countries that Americans fear the most, Ferguson writes.
According to a poll by Gallup's Centre for Muslim Studies, 52 per cent of Iranians have an unfavourable view of the United States. But that figure is down from 63 per cent in 2001. And it's significantly lower than the degree of antipathy towards the United States felt in Jordan, Pakistan and Saudi Arabia. Two thirds of Jordanians and Pakistanis have a negative view of the United States and a staggering 79 per cent of Saudis. Sentiment has also turned hostile in Lebanon, where 59 per cent of people now have an unfavourable opinion of the United States, compared with just 41 per cent a year ago. No fewer than 84 per cent of Lebanese Shiites say they have a very unfavourable view of Uncle Sam.That's not all. By 2006, the Pew Global Attitudes Project reported that the proportion of British people who had a favorable view of the United States "had fallen to 56 per cent. British respondents to the Pew surveys now give higher favourability ratings to Germany (75 per cent) and Japan (69 per cent) than to the United States - a remarkable transformation in attitudes, given the notorious British tendency to look back both nostalgically and unforgivingly to the Second World War."
These figures suggest a paradox in the Muslim world. It's not America's enemies who hate the United States most, it's people in countries that are supposed to be America's friends, if not allies.
Ferguson concludes that "it's lonely at the top." To read more, click here.
Saturday, February 24, 2007
In 1831, Thornton Blackburn conspired to leave his master's home in Louisville, Ky., and make his way to freedom when it was revealed that his new bride, Lucie, was to be sold "down river." Their passage on the steamboat Versailles, facilitated by the use of forged documents, and their arrival, settlement and subsequent incarceration in Detroit, is told in painstakingly researched detail through the use of period documents and narratives of the period that construct a story that was never actually told. That is, Thornton Blackburn himself remained illiterate all his life, and there is very little oral history that Smardz Frost could glean from to provide first-person narrative.
And so, perforce, there is conjecture, surmise and imagining, based on numerous extant narratives from manumitted Africans who lived in the same region of the South, personal diaries, letters, newspaper accounts, family wills, primary court documents etc., all combined in a meticulous weave that drives the story forward.
Sunday, February 25 at 12:45 pm and at 10:00 pm Eastern times (U.S.)
Jeffrey Rosen, "The Supreme Court" & Jan Crawford Greenburg, "Supreme Conflict"
The National Constitution Center in Philadelphia hosts a discussion of the Supreme Court with Jeffrey Rosen and Jan Crawford Greenburg, who have both written new books about the nation’s highest court. In his book, "The Supreme Court," Mr. Rosen explores how the personality and style of justices influence their decision-making. In "Supreme Conflict," Ms. Greenburg shares insights into the Rehnquist and Roberts courts gleaned during her years as a court reporter.
Jeffrey Rosen teaches law at George Washington University. He’s the legal affairs editor of The New Republic. His books include "The Most Democratic Branch," "The Naked Crowd," and "The Unwanted Gaze." Jan Crawford Greenburg covers law and politics as an ABC News correspondent. She was previously the Supreme Court analyst for the NewsHour with Jim Lehrer on PBS and for Face the Nation on CBS. She is a graduate of the University of Chicago Law School.
For the Book TV listing, click here. For previous posts on both books, click here and here.
Through an investigation of the historical and political context that led to the drafting of the Establishment Clause, this article attempts to demonstrate that the original meaning of the Establishment Clause pertains to federalism. Part I reviews the leading “originalist” interpretations that have been set forth by members of the Supreme Court. Part II begins my attempt to recover the original meaning of the Establishment Clause through an investigation of the historical and political context in which the Establishment Clause emerged. Part III offers a detailed analysis of the drafting of the clause in light of the historical and political contexts described in Part II. I conclude that Justice Thomas's federalism interpretation most accurately captures the Establishment Clause's original meaning. In his Newdow opinion, however, Justice Thomas failed to consider the implications of his federalism construction, which is the subject of Part IV of this article. Recovering the Founders' original concern with federalism necessarily means that the original intention that animated the adoption of the Establishment Clause cannot be applied to modern day incorporated “no-establishment” jurisprudence.
For more recent scholarship on the religion clauses in the early days of the nation, click here.
Friday, February 23, 2007
Andy Warhol painted this portrait of Louis Brandies in 1980, as part of his series "Ten Portraits of Jews of the Twentieth Century." The portrait was recently acquired by Brandies University. The University has on display the ten portraits series, assembled together for the first time, as part of its celebration of Louis Brandeis' 150th birthday. For info, click here. For details on the Brandeis portrait, click here.
The Justice Brandies Jubilee schedule of events at Brandeis is here.
Photo credit: click here.
The course of judicial interpretation is well known....Operating from London, the Judicial Committee of the Privy Council(JCPC) played a distinctive role in imposing an interpretation of Canadian federalism that went strongly against apparent design intentions and the expectations of its founders (though not necessarily against social and political realities). To do this, it had to craft a doctrine that would neutralize Parliament's potentially plenary power to"make laws for the peace, order and good government" of the country(POGG). The POGG clause was relegated to the status of reserve power for national emergencies. As in the American case, this forceful jurisprudence culminated in a confrontation over extensive new national policy claims during the Great Depression. In the short term the outcome was very different and the political branches were obliged to take the alternative path of formal constitutional amendment. In the longer term,though, the outcome it was similar--with the JCPC having to cede its role altogether to its domestic counterpart, the Supreme Court of Canada. In Australia, the judiciary's attempt to hold the line against centralization lasted only two decades. In 1920 the Engineer's case introduced what Baier describes as a "meta-doctrine" of literalism, the consequence of which was to preclude any reading of the constitution that privileged its underlying federal intent.
For the rest, click here.
LaCroix reviews Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America
In A Well-Regulated Militia, Saul Cornell challenges [conventional] accounts of the Second Amendment's meaning first by historicizing them, and then by introducing an alternative theory that he contends more accurately captures eighteenth-century conceptions of the right to bear arms....Along the way, LaCroix raises a question:
Cornell argues that neither the individual- nor the collective-rights model offers a complete account of the meaning of the Second Amendment. Both these conceptions, he maintains, arose in the nineteenth century, in the context of later debates concerning the role of gun use and ownership in the United States. In the place of what he regards as these anachronistic interpretations, Cornell offers a "civic" model of the Second Amendment. According to this civic conception, the "original understanding … guaranteed that citizens would be able to keep and bear those arms needed to meet their legal obligation to participate in a well-regulated militia" (p. 2). The civic model thus linked arms-bearing with citizenship by creating a particular constitutional right distinct from common-law rights of self-defense and dependent on the individual's right and duty to participate in the militia.Viewed in light of this civic theory, the aim of the Second Amendment was "protecting the militia against the danger of being disarmed by the government" rather than "protecting individual citizens' right of personal self-defense" (p. 4)....
Even if modern commentators make claims regarding the original understanding of the Second Amendment, why is this the best lens through which a historian should view the twists and turns of the centuries-long debate about the place of guns in the American constitutional system?For the rest, click here.
Wildenthal on Nationalizing the Bill of Rights, and the Debate on the Original Understanding of the 14th Amendment
For many years, the reigning view among scholars was that the Fourteenth Amendment was never understood (except by a few “eccentric” or “confused” figures) to “incorporate” or nationalize the entire Bill of Rights so as to apply it to the states. This modern conventional view was developed primarily by Charles Fairman and Stanley Morrison in 1949, and defended by Raoul Berger from 1977 to 1997. A revisionist, pro-incorporation view was expressed by Justice Hugo Black (and three colleagues) in Adamson v. California (1947), echoing the late-19th century view of the elder Justice John Marshall Harlan, and defended by William Crosskey in the 1950s and Alfred Avins in the 1960s (among others). Michael Curtis, starting in 1980, led a renewed wave of revisionist scholarship, joined by Akhil Amar, Richard Aynes, Earl Maltz, and Stephen Halbrook (among others) in the 1990s. Few scholars would dispute that the modern conventional account has been severely challenged. Many have been persuaded that Black (and the “eccentric” Justice Harlan the elder) were right all along. But some still reject or question the legitimacy of the “incorporation doctrine.” Hence the purpose of this article. It demonstrates the truly shocking and inexcusable extent to which Fairman, Morrison, and especially Berger mishandled the evidence and profoundly misunderstood the meaning of the Fourteenth Amendment. The extent of their scholarly malpractice has not been fully or adequately explored until now. This makes it especially disturbing that their works remain amazingly influential, decades after they were largely debunked. Fairman's 1949 article, in particular, has been viewed as a “classic” for more than half a century. It is one of the most-cited law review articles of all time. Surprisingly, my research has shown that there is still a great deal new to say about the original understanding of the Amendment in 1866-67. I have found relevant original source materials never adequately analyzed before. These include a May 1866 New York Times editorial published two days after the Amendment was introduced in the Senate, and an essay by a Kentucky state judge published during 1866-67 that suggests the goal of nationalizing the Bill of Rights may have been widely understood during the ratification period. This article, following up on two articles I published in 2000, is part of a broader project that will include several forthcoming articles, to be eventually combined into a book.
Albert has also recently posted a couple of earlier articles, American Separationism and Liberal Democracy, and Beyond the Conventional Establishment Clause Narrative.
Tuesday, February 20, 2007
At least someone is ready for a trip...
I will try to check in, but you may need to do without new posts for a few days. There is always Arts & Letters Daily for the latest reviews. Many thanks to readers for tips on WiFi in Oxford and London. Blogging will be back to normal Monday of next week.
Monday, February 19, 2007
For the rest, click here.
Kennedy writes, in part,
The argument goes as follows: The Cold War, although unpleasant, was inherently stable. It was a bipolar world — centered on Washington and Moscow — and, as UC Berkeley political scientist Kenneth Waltz argued, it was much more predictable than, say, the shifting, multipolar world of the 1910s or 1930s, decades that were
followed by calamitous wars. Yes, it's true that the two sides possessed masses of nuclear weapons aimed at each other's biggest cities, but the reality is that they were constrained by a mutual balance of terror....
And here, Kennedy adds many other contemporary security problems.
Today's world is far less stable and indeed much less favorable to the comfortable Western democracies. It is not just that we face an almost-impossible-to-manage "war on terrorism," with all of its capacities for asymmetrical damage to ourselves, our allies and everyone else, even as we swat the occasional terrorist group. It is not just that we are deeply mired in Iraq and Afghanistan and that the whole Middle East may totter because of the failure (one hopes not, but let's not blink) to win on the ground....
So is it true? Was the Cold War era, on the whole, a safer era?
To find out, click here.
Sunday, February 18, 2007
This Article is not an attempt to rehabilitate them. Rather it is a necessary historical journey undertaken with all the trepidation of a traveler who expects the worst but hopes for at least some small pleasant surprises. It revisits Beale and the Restatement in the context of their own time–the 1920s–and examines Beale's life and work, the state of American conflicts law before him, the criticisms of his contemporaries, and the imperfect process that produced the Restatement. For the impatient reader, the short answer to the above question is that, generally, the bad reputation is deserved. However, the journey is rewarding for what one discovers along the way.
Without Beale, there would not have been a Conflicts Restatement and, primarily because of Beale, the Restatement could not have been any better than it was. Even so, it is not clear that American conflicts law would have been better of without a Restatement at all. The prevailing view that the Restatement impeded the development of American conflicts is partly offset by some byproducts of the Restatement process. The Restatement is the beginning of modern American conflicts law. Although it is better to start on the right foot, sometimes starting on the wrong foot is better than not starting at all. The Restatement unified and systematized the previously scattered and neglected conflicts law, brought it to the attention of bar and bench, earned for it a place in the curriculum of all law schools, and galvanized the opposition among the legal realists and other academics. In turn, this led to the production of outstanding scholarship that brought the renaissance of American conflicts law during the next generation and eventually the conflicts revolution. Understanding the Restatement and the forces that produced it is essential in understanding the revolution, but also in avoiding similar mistakes in the future.
Selections from Beales' 1935 Conflict of Laws treatise are available on-line, here.
I intend to show in this study that Mark Twain's adventures of Huckleberry Finn was inherently shaped by, among other factors, a number of momentous decisions of the Supreme Court. These were decisions which strived to project the American society of the ante-bellum period into the post-bellum world. The decisions of the Supreme Court in the post-bellum period, coupled with a severe change in the political and social atmosphere of the late 1870s and early 1880s, combined to create an environment of severe retrogression, specifically when it came to racial integration and interactions. As this Essay will show, the Supreme Court's decisions in this series of cases, while widely believed to have been wrongly decided today, nevertheless had a great deal of influence in halting or stalling many of the advances of the Civil War, the Fourteenth Amendment and the Civil Rights Acts. Indeed, I will argue that the judicial retardation of the egalitarian movement of the nation during and immediately after the Civil War had the effect of ossifying the progression towards civil rights and civil liberties in a manner far more dramatic than the political and social anti-egalitarian forces of the time could have hoped to achieve. Additionally, and centrally for the purposes of this Essay, those judicial decisions were instrumental in the reshaping of Twain's classic text.
Saturday, February 17, 2007
Budiansky tells the story of the first use of military commissions by Americans during the Mexican-American War in 1846. General Winfield Scott ordered the use of commissions when his troops occupied Mexico. According to Budiansky,
Jumping to the present, he argues, "It is a measure of how far we have come as a nation — and in values at one time widely held — that military commissions, once seen as a great stride forward for American principles of justice and the rule of law, will now for ever after be associated with the abridgement of rights."
Scott’s motive was equal parts necessity (maintaining public order) and shrewd politics (appealing to the Mexican population to cooperate with his forces). In place of arbitrary and raw power and summary justice at gunpoint, a system of impartial courts gave Mexicans the assurance that they would be treated fairly.
Scott in particular wanted to impress upon the civilians the contrast between American justice and the lawlessness they had endured when the Mexican forces led by Gen. Antonio López de Santa Anna rode through their villages, looting, raping and killing.
By the same token, Scott used military commissions to try — and punish — American soldiers who had committed crimes, including rape and theft, against local citizens. This, too, was not lost on the populace. General Orders No. 20 became the spark that ignited an international revolution in thinking about martial law. It established for the first time the principle that an occupation commander was subject to a higher legal authority, same as civilian government.
For the rest, click here.