Boden Visitor A Reminder of Marquette’s Connection to Charles Evans Hughes

This year’s Boden Lecturer, Prof. Thomas Merrill, is the Charles Evans Hughes Professor of Law at the Columbia University Law School.   In addition to providing insight in the fascinating Wisconsin case of Melms v. Pabst, his presence also reminds us of an important connection between the Marquette Law Review and Charles Evans Hughes.

Charles Evans Hughes (1862-1948) was one of the great luminaries of American Law.  He is the only individual to have served two separate stints on the Supreme Court (1911-1916 and 1930-1941, the latter as Chief Justice).  He also served as Secretary of State in the Harding and Coolidge administrations, and he and William Howard Taft are the only two men in American history to have both served on the Supreme Court and have been a major party nominee for president of the United States.  However, unlike Taft, who was elected president  in 1908, Hughes lost the presidential election of 1916 to incumbent Woodrow Wilson, although in terms of electoral votes, it was one of the closest elections in American History.  (Wilson won by an electoral vote margin of 277-254.  Had less than 2,000 Californians switched their votes from Wilson to Hughes, Hughes would have become the 29th president of the United States.)

Hughes’ connection to Marquette came shortly after the 1916 election.  Although Woodrow Wilson ran for re-election with the slogan “He kept us out of war”[World War I], barely a month after the beginning of his second term, the U.S. declared war against Germany and the other Axis powers.  The declaration of war led to a mobilization of the American economy under the direction of the national government that was without precedent in American history, and at least some observers questioned the constitutionality of the actions of the Wilson Administration and Congress.

By the summer of 1917, Hughes had returned to the private practice of law in New York City, but he quickly came to the defense of the policies of his former rival.  In an address entitled “War Powers under the Constitution,” delivered to the American Bar Association at its annual meeting on September 5, 1917, Hughes endorsed the broad interpretation of presidential power embraced by President Wilson.  The address was widely hailed by those who supported the American war effort and thousands of copies of the address were distributed to newspapers and other groups by the ABA.

The address was also published as the lead article in Volume 2, Issue 1 of the Marquette Law Review, which appeared only a few months after the address was first delivered. The law review had been founded only the year before, and the journal received a major boost in credibility and visibility with the presence of Hughes already famous address in what was only its third issue.

As the Law Review itself noted at the opening of the issue, “The Marquette Law Review starts its second year as a legal publication with a great deal more confidence than it did the previous year.”  Being able to attract contributors of the stature of Charles Evans Hughes was indeed a reason to feel confident.

How it was that the Marquette Law Review acquired the rights to be the only law review to publish Hughes’ address is not clear.  The Review itself revealed no such information, although in an editorial it did thank Hughes for granting it permission to publish the address.  None of Hughes’ biographers make any reference to a Marquette connection; however, one is tempted to speculate that the connection came through faculty member Carl Rix, who was the law review’s faculty adviser in 1917, and who was an active member (and a future president) of the American Bar Association.

While Rix may be the connection, he did not attend the 1917 ABA meeting which was held in Saratoga Springs, New York.  In fact, that year only two lawyers from Milwaukee, Edward Fairchild and W. A. Hayes, attended the annual meeting , and neither had any connection to the Marquette Law School.

It may simply have been that some enterprising member of the law review staff came up with the idea of contacting Hughes and offering to publish his address.

In any event, its publication brought the law review a great deal of attention, and forever established a linkage between Marquette and Charles Evans Hughes.

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Who Is This Guy?

The picture to the left, which was earlier used to illustrate a post describing the original Marquette Law School curriculum, is a photograph of Pamphilus Joseph O’Brien, Law ’15.  His is one of the first photographs that we have of an early Marquette law student, other than the photos in the official class pictures.

O’Brien was born in Wisconsin on May 5, 1889.  His parents, John O’Brien and Julia Cruden O’Brien, operated a farm near Randolph, Wisconsin, on the border of Columbia and Dodge Counties.  Both parent were of Irish descent.  His father was a native of Ireland, while his Wisconsin-born mother was the daughter of Irish immigrants.   O’Brien was apparently named in honor of St. Pamphilius, a now somewhat obscure Christian martyr in the early fourth century.

O’Brien appears to have rarely used his unusual first name, which was somewhat difficult to pronounce, and he was generally known as Pam or P.J.  (Early Marquette bulletins list him as Pam J. O’Brien.)

At some point in his early life, O’Brien moved to North Dakota, where he attended Valley City Normal College, a teacher training institute.  He enrolled in the Marquette Law School in the fall of 1912, at age twenty-three.

As a student at Marquette, O’Brien joined the recently founded Nu Nu chapter of the Theta Nu Epsilon fraternity, a fraternal organization that admitted students at the end of their first year of college.  In the early twentieth century, fraternities were major institutions at most American colleges, and Marquette was no exception.  Theta Nu Epsilon was not a legal fraternity, but in the 1910’s there was no formal differentiation between law students and undergraduate students when it came to fraternity membership.

O’Brien’s involvement with Theta Nu Epsilon reminds us that the lines between law and college students were not nearly so sharp in that era as they are today. Initially, Marquette required only a high school diploma for admission to the day division of the law school.  Then, for more than a decade it required law students to have only a year of college, and that year could be taken in combination with the law course.  As a consequence, there was often very little difference in age between students in the college and their full-time counterparts in the law department.

O’Brien was extensively involved with Theta Nu Epsilon, and his involvement continued after he received his law degree in the spring of 1915.  Later that year he was elected as a trustee of the national fraternity, and the following year he became one of its national officers.

After graduation from Marquette, O’Brien remained in Milwaukee to practice law.  He later married a woman named Hazil Underhill, and at some point the O’Briens moved to California.  Pamphilius O’Brien died in Alameda, California, in 1951, shortly before his sixty-first birthday, and just after the thirty-fifth anniversary of his graduation from Marquette.

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Best of the Blogs

What do we have this week? Over at the wonderful Mirror of Justice, you can follow a debate involving Michael Perry, Mike Scaperlanda, Robbie George, Robert Hockett and Rick Garnett  and others (I’ve linked to some but not all of the posts in the thread) on Pope Benedict XVI’s concern about the “dictatorship of relativism.”  Professor Hockett’s argument that terms like “relativism” and “tolerance” often mask conclusions rather than do much argumentative work reminded me of Steven D. Smith’s excellent new book, The Disenchantment of Secular Discourse. I just finished reading it and hope to  blog on it shortly.

At Public Discourse, Rob Vischer considers the Supreme Court’s recent decision in Christian Legal Society v. Martinez upholding a requirement at Hastings Law School that recognized student organizations may not exclude students based upon their refusal to accept the organization’s objectives or beliefs. Rob concludes:

The next challenge is clear: we must think seriously about how to help deepen our public discourse about discrimination and diversity to include recognition that associational diversity is a key component of religious and moral liberty, and that even if a university now has the right to make all groups accept everyone, it is a right best left unexercised.

At Ballkinization, Jack Balkin expresses concern over a decision Thursday by a district judge in Massachusetts v. HHS finding that the Defense of Marriage Act violates the Tenth Amendment. 

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