James W. Ely, Jr.'s Books

The Guardian of Every Other Right

A Constitutional History of Property Rights

By: James W. Ely

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The Guardian of Every Other Right

A Constitutional History of Property Rights

By: James W. Ely

This book considers the interplay of law, ideology, politics and economic change in shaping constitutional thought, and provides a historical perspective on the contemporary debate about property rights. The third edition has been completely revised and updated.

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239

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Oxford University Press

Published Date

ISBN 10

0195323327

ISBN 13

9780195323320

The Contract Clause

A Constitutional History

By: James W. Ely, Jr.

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The Contract Clause

A Constitutional History

By: James W. Ely, Jr.

Few provisions of the American Constitution have had such a tumultuous history as the contract clause. Prompted by efforts in a number of states to interfere with debtor-creditor relationships after the Revolution, the clause—Article I, Section 10—reads that no state shall “pass any. . . Law impairing the Obligation of Contracts.” Honoring contractual commitments, in the framers' view, would serve the public interest to encourage commerce and economic growth. How the contract clause has fared, as chronicled in this book by James W. Ely, Jr., tells us a great deal about the shifting concerns and assumptions of Americans. Its history provides a window on matters central to American constitutional history, including the protection of economic rights, the growth of judicial review, and the role of federalism. Under the leadership of Chief Justice John Marshall, the Supreme Court construed the provision expansively, and it rapidly became the primary vehicle for federal judicial review of state legislation before the adoption of the Fourteenth Amendment. Indeed, the contract clause was one of the most litigated provisions of the Constitution throughout the nineteenth century, and its history reflects the impact of wars, economic distress, and political currents on reading the Constitution. Ely shows how, over time, the courts carved out several malleable exceptions to the constitutional protection of contracts—most notably the notion of an inalienable police power—thus weakening the contract clause and enhancing state regulatory authority. His study documents the near-fatal blow dealt to the provision by New Deal constitutionalism, when the perceived need for governmental intervention in the economy superseded the economic rights of individuals. Though the 1970s saw a modest revival of interest in the contract clause, the criteria for invoking it remain uncertain. And yet, as state and local governments try to trim the benefits of public sector employees, the provision has once again figured prominently in litigation. In this book, James Ely gives us a timely, analytical lens for understanding these contemporary challenges, as well as the critical historical significance of the contract clause.

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384

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University Press of Kansas

Published Date

ISBN 10

0700623078

ISBN 13

9780700623075

The Fuller Court

Justices, Rulings, and Legacy

By: James W. Ely Jr.

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The Fuller Court

Justices, Rulings, and Legacy

By: James W. Ely Jr.

A fresh interpretation of the workings and legacy of the Supreme Court during the tenure of Chief Justice Melville W. Fuller. The Fuller Court: Justices, Rulings, and Legacy presents an in-depth analysis of the decisions and impact of the U.S. Supreme Court during the twenty-two year reign of Chief Justice Melville W. Fuller. An exploration of key Court decisions—ranging from railroad rate regulation and the Due Process Clause to the 1894 income tax—reveals how the Court assigned a high priority to individual liberty, which it defined largely in economic terms. A revealing discussion of the Commerce Clause and the Interstate Commerce Commission shows how the Fuller Court both limited and accepted some expansion of federal authority. Profiles of the nineteen justices who served on the Fuller Court place a special emphasis on those who made the most significant impact, including John Marshall Harlan, Samuel F. Miller, and Oliver Wendell Holmes, Jr.

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336

Publisher

Bloomsbury Publishing USA

Published Date

ISBN 10

1576077152

ISBN 13

9781576077153

Licensed to Practice

The Supreme Court Defines the American Medical Profession

By: James C. Mohr

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Licensed to Practice

The Supreme Court Defines the American Medical Profession

By: James C. Mohr

How did American doctors come to be licensed on the terms we now take for granted? Licensed to Practice begins with an 1891 shooting in Wheeling, West Virginia, that left one doctor dead and another on trial for his life. Formerly close friends, the doctors had fallen out over the issue of medical licensing. Historian James C. Mohr calls the murder “a sorry personal consequence of the far larger and historically significant battle among West Virginia’s physicians over the future of their profession.” Through most of the nineteenth century, anyone could call themselves a doctor and could practice medicine on whatever basis they wished. But an 1889 U.S. Supreme Court case, Dent v. West Virginia, effectively transformed medical practice from an unregulated occupation to a legally recognized profession. The political and legal battles that led up to the decision were unusually bitter—especially among physicians themselves—and the outcome was far from a foregone conclusion. So-called Regular physicians wanted to impose their own standards on the wide-open medical marketplace in which they and such non-Regulars as Thomsonians, Botanics, Hydropaths, Homeopaths, and Eclectics competed. The Regulars achieved their goal by persuading the state legislature to make it a crime for anyone to practice without a license from the Board of Health, which they controlled. When the high court approved that arrangement—despite constitutional challenges—the licensing precedents established in West Virginia became the bedrock on which the modern American medical structure was built. And those precedents would have profound implications. Thus does Dent, a little-known Supreme Court case, influence how Americans receive health care more than a hundred years after the fact.

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225

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JHU Press

Published Date

ISBN 10

1421411423

ISBN 13

9781421411422

Railroads and American Law

By: James W. Ely, Jr.

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Railroads and American Law

By: James W. Ely, Jr.

No enterprise is so seductive as a railroad for the influence it exerts, the power it gives, and the hope of gain it offers.—Poor's Manual of Railroads (1900) At its peak, the railroad was the Internet of its day in its transformative impact on American life and law. A harbinger and promoter of economic empire, it was also the icon of a technological revolution that accelerated national expansion and in the process transformed our legal system. James W. Ely Jr., in the first comprehensive legal history of the rail industry, shows that the two institutions-the railroad and American law-had a profound influence on each other. Ely chronicles how "America's first big business" impelled the creation of a vast array of new laws in a country where long-distance internal transport had previously been limited to canals and turnpikes. Railroads, the first major industry to experience extensive regulation, brought about significant legal innovations governing interstate commerce, eminent domain, private property, labor relations, and much more. Much of this development was originally designed to serve the interests of the railroads themselves but gradually came to contest and control the industry's power and exploitative tendencies. As Ely reveals, despite its great promise and potential as an engine of prosperity and uniter of far-flung regions, the railroad was not universally admired. Railroads uprooted people, threatened local autonomy, and posed dangers to employees and the public alike-situations with unprecedented legal ramifications. Ely explores the complex and sometimes contradictory ways in which those ramifications played out, as railroads crossed state lines and knitted together a diverse nation with thousands of miles of iron rail. Epic in its scope, Railroads and American Law makes a complex subject accessible to a wide range of readers, from legal historians to railroad buffs, and shows the many ways in which a powerful industry brought change and innovation to America.

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376

Publisher

University Press of Kansas

Published Date

ISBN 10

0700611444

ISBN 13

9780700611447

The Chief Justiceship of Melville W. Fuller, 1888–1910

By: James W. Ely

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The Chief Justiceship of Melville W. Fuller, 1888–1910

By: James W. Ely

A study of the man who led the Supreme Court as the nineteenth century ended and the twentieth began, exploring issues of property, government authority, and more. In this comprehensive interpretation of the Supreme Court during the pivotal tenure of Melville W. Fuller, James W. Ely Jr., provides a judicial biography of the man who led the Court from 1888 until 1910 as well as a comprehensive and thoughtful analysis of the jurisprudence dispensed under his leadership. Highlighting Fuller’s skills as a judicial administrator, Ely argues that a commitment to economic liberty, the security of private property, limited government, and states’ rights guided Fuller and his colleagues in their treatment of constitutional issues. Ely directly challenges the conventional idea that the Fuller Court adopted laissez-faire principles in order to serve the needs of business. Rather, Ely presents the Supreme Court’s efforts to safeguard economic rights not as a single-minded devotion to corporate interests but as a fulfillment of the property-conscious values that shaped the constitution-making process in 1787. The resulting study illuminates a range of related legal issues, including the Supreme Court’s handling of race relations, criminal justice, governmental authority, and private law disputes.

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461

Publisher

Univ of South Carolina Press

Published Date

ISBN 10

1611171717

ISBN 13

9781611171716

Wall Street and the Fruited Plain

Money, Expansion, and Politics in the Gilded Age

By: James T. Wall

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Wall Street and the Fruited Plain

Money, Expansion, and Politics in the Gilded Age

By: James T. Wall

Wall Street and the Fruited Plain delves deep into the parody known today as the "Gilded Age". The last decades of the 19th century saw both industrial and agricultural explosions in the United States. However, the base metal beneath this glittering façade was comprised of sweat-soaked, underpaid laborers, many of whom had just splashed ashore from Europe's seething cauldrons. In the early years of the period, the nation underwent the wrenching challenge of Reconstruction, nominally resolved in the compromise of 1877. In the Gilded Age, America expanded both internally and externally. The frontier moved from Kansas to California. Trappers, miners, cattlemen, and--finally-homesteaders, with the help of a burgeoning railroad network, fanned out across the central plains and the western plateaus. Wall Street dominated not only the economic and social life of the country, but the politics as well. A series of lackluster presidents between Lincoln and Theodore Roosevelt facilitated this dominion and by the end of Roosevelt's first Administration, America had become an adolescent headliner on the world stage.

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Page Count

398

Publisher

University Press of America

Published Date

ISBN 10

0761841245

ISBN 13

9780761841241

John & Edward Rutledge of South Carolina

By: James Haw

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John & Edward Rutledge of South Carolina

By: James Haw

John Rutledge (1739-1800) was a wealthy planter and successful lawyer, a leader in South Carolina's colonial Commons House of Assembly, and a delegate to the First and Second Continental Congresses. As chief executive of the state during most of the War for Independence, he was instrumental in its defense and recovery after the British conquest of 1780. One of the leading delegates to the United States constitutional convention in 1787, he served as chief justice of South Carolina, and briefly as associate justice of the U.S. Supreme Court.

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412

Publisher

University of Georgia Press

Published Date

ISBN 10

0820318590

ISBN 13

9780820318592

Chief Justice Fred M. Vinson of Kentucky

A Political Biography

By: James E. St. Clair,Linda C. Gugin

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Chief Justice Fred M. Vinson of Kentucky

A Political Biography

By: James E. St. Clair,Linda C. Gugin

Fred M. Vinson, the thirteenth Chief Justice of the United States, started his political career as a small-town Kentucky lawyer and rose to positions of power in all three branches of federal government. Born in Louisa, Kentucky, Vinson earned undergraduate and law degrees from Centre College in Danville. He served 12 years in the U.S. House of Representatives, where he achieved acclaim as a tax and fiscal expert. President Roosevelt appointed him to the U.S. Circuit Court of Appeals for the District of Columbia and later named him to key executive-branch positions. President Truman appointed him Secretary of the Treasury and then Chief Justice. The Vinson court was embroiled in critical issues affecting racial discrimination and individual rights during the cold war. Chief Justice Fred M. Vinson of Kentucky: A Political Biography offers a wealth of insight into one of the most significant and highly regarded political figures to emerge from Kentucky.

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536

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University Press of Kentucky

Published Date

ISBN 10

0813193664

ISBN 13

9780813193663

Between Church and State

Religion and Public Education in a Multicultural America

By: James W. Fraser

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Between Church and State

Religion and Public Education in a Multicultural America

By: James W. Fraser

A fully updated second edition of this essential look at the continuing tensions between religion and American public schools. Today, the ongoing controversy about the place—or lack of place—of religion in public schools is a burning issue in the United States. Prayer at football games, creationism in the classroom, the teaching of religion and morals, and public funding for private religious schools are just a few of the subjects over which people are skirmishing. In Between Church and State, historian and pastor James W. Fraser shows that these battles have been going on for as long as there have been public schools and argues there has never been any consensus about what the “separation of church and state” means for American society or about the proper relationship between religion and public education. Looking at the difficult question of how private issues of faith can be reconciled with the very public nature of schooling, Fraser’s classic book paints a complex picture of how a multicultural society struggles to take the deep commitments of people of faith into account—including people of many different faiths and no faith. In this fully updated second edition, Fraser tackles the culture wars, adding fresh material on current battles over public funding for private religious schools. He also addresses the development of the long-simmering evolution-creationism debate and explores the tensions surrounding a discussion of religion and the accommodation of an increasingly religiously diverse American student body. Between Church and State includes new scholarship on the role of Roger Williams and William Penn in developing early American conceptions of religious liberty. It traces the modern expansion of Catholic parochial schools and closely examines the passage of the First Amendment, changes in American Indian tribal education, the place of religion in Booker T. Washington and W. E. B. Du Bois’s debates about African American schooling, and the rapid growth of Jewish day schools among a community previously known for its deep commitment to secular public education.

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297

Publisher

JHU Press

Published Date

ISBN 10

1421420597

ISBN 13

9781421420592

The Supreme Court and Religion in American Life, Vol. 2

From "Higher Law" to "Sectarian Scruples"

By: James Hitchcock

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The Supreme Court and Religion in American Life, Vol. 2

From "Higher Law" to "Sectarian Scruples"

By: James Hitchcock

School vouchers. The Pledge of Allegiance. The ban on government grants for theology students. The abundance of church and state issues brought before the Supreme Court in recent years underscores an incontrovertible truth in the American legal system: the relationship between the state and religion in this country is still fluid and changing. This, the second of two volumes by historian and legal scholar James Hitchcock, offers a complete analysis and interpretation of the Court's historical understanding of religion, explaining the revolutionary change that occurred in the 1940s. In Volume I: The Odyssey of the Religion Clauses (Princeton), Hitchcock provides the first comprehensive survey of the court cases involving the Religion Clauses, including a number that scholars have ignored. Here, Hitchcock examines how, in the early history of our country, a strict separation of church and state was sustained through the opinions of Jefferson and Madison, even though their views were those of the minority. Despite the Founding Fathers' ideas, the American polity evolved on the assumption that religion was necessary to a healthy society, and cooperation between religion and government was assumed. This view was seldom questioned until the 1940s, notes Hitchcock. Then, with the beginning of the New Deal and the appointment of justices who believed they had the freedom to apply the Constitution in new ways, the judicial climate changed. Hitchcock reveals the personal histories of these justices and describes how the nucleus of the Court after World War II was composed of men who were alienated from their own faiths and who looked at religious belief as irrational, divisive, and potentially dangerous, assumptions that became enshrined in the modern jurisprudence of the Religion Clauses. He goes on to offer a fascinating look at how the modern Court continues to grapple with the question of whether traditional religious liberty is to be upheld.

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273

Publisher

Princeton University Press

Published Date

ISBN 10

1400826268

ISBN 13

9781400826261

Packing the Court

The Rise of Judicial Power and the Coming Crisis of the Supreme Court

By: James Macgregor Burns

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Packing the Court

The Rise of Judicial Power and the Coming Crisis of the Supreme Court

By: James Macgregor Burns

From renowned political theorist James MacGregor Burns, an incisive critique of the overreaching power of an ideological Supreme Court For decades, Pulitzer Prize-winner James MacGregor Burns has been one of the great masters of the study of power and leadership in America. In Packing the Court, he turns his eye to the U.S. Supreme Court, an institution that he believes has become more powerful, and more partisan, than the founding fathers ever intended. In a compelling and provocative narrative, Burns reveals how the Supreme Court has served as a reactionary force in American politics at critical moments throughout the nation's history, and concludes with a bold proposal to rein in the court's power.

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354

Publisher

Penguin

Published Date

ISBN 10

1101081902

ISBN 13

9781101081907

Free to Work

Labor Law, Emancipation, and Reconstruction, 1815-1880

By: James D. Schmidt

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Free to Work

Labor Law, Emancipation, and Reconstruction, 1815-1880

By: James D. Schmidt

In this intriguing and innovative work, James D. Schmidt examines federal efforts to establish "free labor" in the South during and after the Civil War by exploring labor law in the antebellum North and South and its role in the development of a capitalist labor market. Identifying the emergence of conservative, moderate, and liberal stances on state intervention in the labor market, Schmidt develops three important case studies--wartime Reconstruction in Louisiana, the Thirteenth Amendment, and the Freedmen's Bureau--to conclude that the reconstruction of free labor in the South failed in large part because of the underdeveloped and contradictory state of labor law. The same legal principles, Schmidt argues, triumphed in the postwar North to produce a capitalist market in labor.

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