The Summer 2019 issue of Marquette Lawyer features three pairs of stories with an underlying common theme that can be summed up by one of the headlines: “In Search of Better Outcomes.” This issue of the Marquette Law School semiannual magazine overall has a substantial historical orientation, but it also speaks strongly to current realities and issues—as has become even clearer since the magazine hit the streets a few weeks ago. Simply put, learning about the past helps in understanding the present and considering the future. This post takes up one pair of articles: the cover story and a reaction to it.
The cover story, “Dying Constitutionalism and the Fourteenth Amendment,” is an edited version of the Robert F. Boden Lecture given at Marquette Law School in fall 2018, by Ernest A. Young, the Alston & Bird Professor at Duke Law School. While the Fourteenth Amendment later would be crucial to the growth of constitutional protections and the extension of civil rights—the linchpin of America’s “second founding,” as it is sometimes called—Young focuses on the first 75 years after the amendment was ratified in 1868. It was a period of broad suppression of civil rights, particularly those of African Americans—the Fourteenth Amendment not working much to the contrary.
Young’s purpose is not so much historical as jurisprudential: He presents his essay as a cautionary tale about “living constitutionalism,” demonstrating that, while that mode of constitutional interpretation was not the Court’s stated approach in those 75 years, it could have been: For “every one of [living constitutionalism’s] modalities strongly supported the compromise or even abandonment of the amendment’s core purpose of freedom and equality for black Americans.” Simply stated, the history of the use of the amendment is a reminder that “social progress is not inevitable, that social forces can push constitutional meaning in bad as well as good directions, that living can turn into dying constitutionalism if we are not very, very careful,” Young writes.
In a comment on Young’s lecture, David A. Strauss, Gerald Ratner Distinguished Service Professor of Law at the University of Chicago and author of The Living Constitution (Oxford 2012), says that the early failures under the Fourteenth Amendment need to be reckoned with by those who are proponents of living constitutionalism. He writes that Young’s lecture shows that “in the end, there is only so much that the law can do to save a society from its own moral failings.”
On April 18 at 4 pm Pulitzer Prize winning author Garry Wills will speak at the Marquette University Law School. The topic of his talk is “Does Democracy Protect Human Rights? Constitution vs. Plebiscite.”
The event is sponsored by a grant from the UW Stout’s Center for the Study of Institutions and Innovation.
Garry Wills is Professor Emeritus of history and a cultural historian at Northwestern University. His many books include studies of George Washington, Richard Nixon, the Kennedy family, Ronald Reagan, and religion in America. His 1992 book, “Lincoln at Gettysburg: The Words That Remade America,” won the 1993 Pulitzer Prize for General Nonfiction and the 1992 National Book Critics Circle Award for Criticism. Wills won the 1979 Merle Curti Award from the Organization of American Historians and the 1978 National Book Critics Circle Award for General Nonfiction for his 1978 book, “Inventing America: Jefferson’s Declaration of Independence.” Wills has also been awarded the National Humanities Medal, and he was inducted as a laureate of The Lincoln Academy of Illinois and awarded the Order of Lincoln. His most recent book is “What The Qur’an Meant and Why It Matters.”
On the 135th Anniversary of the Supreme Court’s opinion in The Civil Rights Cases, it is worth reflecting on how that opinion — which came after Reconstruction but before Jim Crow—reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the power of the history of slavery and the salience of race, contributes to enduring white supremacy.
This week marks the 135th anniversary of the U.S. Supreme Court’s opinion in The Civil Rights Cases, 109 U.S. 3 (1883). While to some this is a mere historical footnote, the decision is worth remembering because it reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the salience of race, contributes to enduring structural oppression. The reasoning in The Civil Rights Cases is an object study in how to maintain white supremacy—and a mirror to our society today.
The opinion overturned the Civil Rights Act of 1875. It sought to protect recently freed African-American slaves from discrimination in the use of “inns, public conveyances on land or water, theaters, and other places of public amusement.” In striking down this nineteenth-century public accommodations law, thus allowing private businesses to deny services to African Americans because of their race, Justice Joseph P. Bradley, speaking for the 8-1 Supreme Court majority, made three arguments. Continue reading “The Mirror of Racial Tyranny in The Civil Rights Cases”
The ongoing refusal of President Donald Trump to both reveal the specifics of his personal finances and to decline any income from sources outside of his official salary as President has brought renewed attention to the Emoluments Clauses of the United States Constitution. There are two such clauses, which state as follows:
The Foreign Emoluments Clause prohibits any “Person holding any Office of Profit or Trust” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State,” absent “the Consent of the Congress.” U.S. Const. art. I, §9, cl. 8. The Domestic Emoluments Clause entitles the President to receive a salary while in office and forbids him from “receiv[ing] within that Period any other Emolument from the United States, or any of them.” U.S. Const. art. II, §1, cl. 7.
The meaning of these two provisions has become the subject of public debate and also litigation. In one leading case, the State of Maryland and the District of Colombia have sued Donald Trump for violating these constitutional provisions. They are suing for declaratory and injunctive relief which would compel President Trump to comply with the terms of the Constitution. Continue reading “Emoluments, Textualism and Original Intent”
On May second, the Marquette community lost one of its most interesting, wonderfully eccentric, and beloved members, Professor Gordon Hylton, who died of complications from cancer. Academics by and large are an enthusiastic group of people with extraordinary jobs that give them a privileged opportunity to study and share their passions with colleagues and students. No one more thoroughly enjoyed and reveled in being part of that world than Gordon Hylton. He was a devoted teacher, a relentless, careful, and thorough scholar, and a cherished colleague.
I personally found Gordon to be one of the most interesting people of my acquaintance largely because he had so many interests, found so many things fascinating, and, aided by a legendary memory, pursued them with passion and rigor and a remarkable urge to synthesize, to explain everything. And he was generous. He enjoyed nothing so much as chatting with his students and his colleagues about baseball, country music, the odd personalities who sat on the Supreme Court, the reasonableness of property doctrines, the early history of Christianity, and always with great enthusiasm and courtesy, as if knowledge and insight were both important and the most fun.
Professor Hylton was a native of Pearisburg, a small town (population, 2,699 in 2016) in Giles County in the SW corner of Virginia near the border with West Virginia. He began his college and university career at Oberlin College in Ohio, where, he often explained, he enrolled because they let him play baseball. In the course of his four years at Oberlin, the student radio station also let him host a country music program in the late night, early early morning hours. Oberlin nurtured a pronounced competitive streak. His roommates recall Gordon organizing them to enter a team in every intramural sport including inner tube water polo despite the fact that Gordon did not know how to swim, something his teammates discovered only well into the water polo season.
The Marquette Law School community is saddened by the news that Professor J. Gordon Hylton has passed away at age 65, following a battle with cancer.
Gordon was a wonderful colleague on the Law School faculty. He joined the faculty at Marquette University Law School in 1995, after teaching previously at the Chicago-Kent College of Law of the Illinois Institute of Technology. Gordon left Marquette Law School in 2015 to join the faculty at the University of Virginia School of Law full time (having visited at UVA many semesters previously). He also served a memorable year as the Fulbright Professor of Law at Kyiv-Mohyla Academy in Kiev, Ukraine. A wonderful In Memoriam webpage celebrating Gordon’s career appears on the website of the University of Virginia School of Law.
Gordon taught courses in Property Law, Trusts and Estates, and Legal History, among others, and was also closely involved with the National Sports Law Institute at Marquette Law School. He was a frequent contributor to the Marquette Law School Faculty Blog, where he was known for his posts on the history of Marquette Law School in general and on the often overlooked athletes who had a historical connection with our institution. His blog posts were sometimes quirky, often obscure, but always among the most interesting to appear on the Faculty Blog. Continue reading “Remembering Professor Gordon Hylton”
This semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is one of those blog posts, this one written by 2L Kelly Owens.
“In Bellingham, Washington, it is illegal for a woman to do what while dancing?” my dad asked the family during a heated game of Balderdash while I was home for the Easter holiday.
For those who might be unfamiliar with the (highly entertaining) game of Balderdash, the game poses questions across various categories to the players, and each player must come up with a convincing answer to attempt to trick other players into picking their answer over the correct one.
During this particular round, the category was weird laws. And, apparently, Bellingham, Washington, has at least one such law.
No, Bellingham does not make it illegal for a woman to kick her legs into the air while dancing (my mom’s answer), but it is illegal for a woman to take more than three steps backward while dancing. Or is it?
My immediate thought after getting through the round and hearing the answer was, How did such a ridiculous thing become a law? Better yet, how does one even go about enforcing such a law? My law student curiosity got the best of me, so I of course decided that this law required some more investigating. Continue reading “It’s Illegal to Do What? Strange Laws and Why They Exist”
In the 1950s the active bench of the Second Circuit experienced nearly a complete turnover, one that changed how the judges approach copyright law.
There’s an old joke about scientific progress: that science advances one funeral at a time. The same might be said about judicial philosophies. Some judges might be persuaded to change their views over time, but it is just as likely, if not more, that change occurs through a changing of the guard. So it was with the Second Circuit in the 1960s. The Second Circuit had had a remarkably stable bench during the 1940s, when Learned Hand was the chief judge. Four of them, Hand, Hand’s cousin Augustus, Harrie Chase, and Thomas Swan served together in active or senior status for twenty-five years, from 1929 to 1954. The remaining two, Charles Clark and Jerome Frank, were with them from 1940 on.
But within six years in the 1950s, the active bench of the Second Circuit experienced nearly a complete turnover, except for Clark. The new judges, who included Henry Friendly, J. Edward Lumbard, Irving Kaufman, and Thurgood Marshall, obviously had different educational and professional experiences from those of the judges they replaced. What truly distinguished the new group, however, is that they had a very different approach to judicial decisionmaking, and in particular the proper role of discretion. No longer were the Second Circuit judges comfortable with leaving important substantive decisions on the merits of a claim to case-by-case equitable balancing. In the 1960s, the Second Circuit began crafting multi-part tests to replace the vague standards that had come before, to force lower courts and later panels to elaborate the reasons for their decisions. Whether they consciously subscribed to it or not, the new judges were heavily influenced by Legal Process ideology. Continue reading “The Legal Process Sea-Change”
Learned Hand wasn’t as skeptical of a court’s ability to decide issues of fair use and substantial similarity as he is often portrayed.
Possibly no judge had a greater influence on copyright law in the twentieth century than Learned Hand. Nichols v. Universal Pictures and Peter Pan Fabrics are foundational cases in most textbooks; Sheldon v. MGM and Fred Fisher v. Dillingham used to be. And although he did not write the opinion, Hand was on the panel that decided Arnstein v. Porter.
Part of the reason for Hand’s enduring popularity is that he was a brilliant writer, and his aphorisms about copyright law continue to appeal to a skeptical age. In Nichols, he famously declared with respect to the distinction between uncopyrightable idea and copyrightable expression, “Nobody has ever been able to fix that boundary, and nobody ever can.” In Shipman v. RKO Pictures: “The test is necessarily vague and nothing more definite can be said about it.” In Dellar v. Samuel Goldwyn, Inc., decided per curiam but attributed to Hand: “[T]he issue of fair use … is the most troublesome in the whole law of copyright.” In Peter Pan Fabrics v. Martin Weiner Corp.: “The test for infringement of a copyright is of necessity vague…. In the case of designs, which are addressed to the aesthetic sensibilities of an observer, the test is, if possible, even more intangible.”
To modern ears, these sound like (and are often quoted as) criticisms of copyright law. A vague, ineffable test is an unworkable test, one that offers no guidance to lower courts or juries and is therefore hardly better than no test at all. But to read Hand in this way to read him anachronistically. Continue reading “Learned Hand: You’re Reading Him Wrong”
Joseph A. Ranney says his interest in almost two centuries of Wisconsin’s legal system stands on two things. One is as simple as this: “I love history.” The other is the large amount of time he has spent reading old volumes of Wisconsin legal records as a student and as a lawyer.
His passion for the subject has made Ranney, the Adrian P. Schoone Fellow in Wisconsin Law and Legal Institutions at Marquette University Law School and a partner with the firm of DeWitt Ross & Stevens in Madison, an expert on Wisconsin’s legal history. His most recent book, Wisconsin and the Shaping of American Law, was published in 2017 by the University of Wisconsin Press.
Click on any part—the Preamble, any of the seven articles, or any of the 27 amendments—and view the text of that part, along with the dates of its signing or passage and its ratification. You’ll also learn if any part of the Constitution was changed by an amendment. Article I contains several sections that were changed by later amendments. For example, click on the highlighted text in Article I, section 3 (“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote”) to learn that this section was changed by the 17th Amendment, which allows for the direct popular election of senators.
The extraordinary success of the Broadway musical “Hamilton” has spiked renewed interest in the accomplishments of the actual Alexander Hamilton (1757-1804). And indeed, Hamilton was a genuine military hero in the Revolutionary War, George Washington’s unofficial chief of staff, author of two-thirds of the “Federalist Papers,” the nation’s first Secretary of the Treasury, and the leading architect of the Early Republic’s market economy. His accomplishments as an attorney have attracted less attention, but legalists in particular might remember that in his era, he was New York City’s pre-eminent attorney.
When Hamilton returned to New York City after the defeat of the British in 1781, he qualified for a veteran’s exemption from the requirement that aspiring attorneys complete an apprenticeship. He studied law on his own for only six months, concentrating his studies on Lord William Blackstone’s “Commentaries on the English Common Law.” He then passed an oral bar examination and was admitted to practice in 1782. Continue reading “Alexander Hamilton as Attorney”