Joshua E. Kastenberg's Books

In a Time of Total War

The Federal Judiciary and the National Defense - 1940-1954

By: Joshua E. Kastenberg,Eric Merriam

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In a Time of Total War

The Federal Judiciary and the National Defense - 1940-1954

By: Joshua E. Kastenberg,Eric Merriam

This book is a judicial, military and political history of the period 1941 to 1954. As such, it is also a United States legal history of both World War II and the early Cold War. Civil liberties, mass conscription, expanded military jurisdiction, property rights, labor relations, and war crimes arising from the conflict were all issues to come before the federal judiciary during this period and well beyond since the Supreme Court and the lower courts heard appeals from the government’s wartime decisions well into the 1970s. A detailed study of the judiciary during World War II evidences that while the majority of the justices and judges determined appeals partly on the basis of enabling a large, disciplined, and reliable military to either deter or fight a third world war, there was a recognition of the existence of a tension between civil rights and liberties on the one side and military necessity on the other. While the majority of the judiciary tilted toward national security and deference to the military establishment, the judiciary’s recognition of this tension created a foundation for persons to challenge governmental narrowing of civil and individual rights after 1954. Kastenberg and Merriam present a clearer picture as to why the Court and the lower courts determined the issues before them in terms of external influences from both national and world-wide events. This book is also a study of civil-military relations in wartime so whilst legal scholars will find this study captivating, so will military and political historians, as well as political scientists and national security policy makers.

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Page Count

303

Publisher

Routledge

Published Date

ISBN 10

1317118057

ISBN 13

9781317118053

The Blackstone of Military Law

Colonel William Winthrop

By: Joshua E. Kastenberg

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The Blackstone of Military Law

Colonel William Winthrop

By: Joshua E. Kastenberg

Colonel William Winthrop singularly was the most influential person in developing the military law of the United States. A half century ago, the Supreme Court tendered to Winthrop the title, 'The Blackstone of Military Law,' meaning simply that his influence outshone all others. He has been cited over 20 times by the highest court and well over a 1,000 times by other federal courts, state courts, and legal texts. In this, he surpasses most other legal scholars, save Joseph Story, John Marshall, or Felix Frankfurter. But while biographies of each of these Supreme Court Justices have been written, there has been none to date on Winthrop. The Blackstone of Military Law: Colonel William Winthrop is the first biography on this important figure in military and legal history. Written in both a chronological and thematic format, author Joshua E. Kastenberg begins with Winthrop's legal training, his involvement in abolitionism, his military experiences during the Civil War, and his long tenure as a judge advocate. This biography provides the necessary context to fully appreciate Winthrop's work, its meaning, and its continued relevance.

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Page Count

353

Publisher

Scarecrow Press

Published Date

ISBN 10

0810863014

ISBN 13

9780810863019

Shaping US Military Law

Governing a Constitutional Military

By: Joshua E. Kastenberg

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Shaping US Military Law

Governing a Constitutional Military

By: Joshua E. Kastenberg

Since the United States’ entry into World War II, the federal judiciary has taken a prominent role in the shaping of the nation’s military laws. Yet, a majority of the academic legal community studying the relationship between the Court and the military establishment argues otherwise providing the basis for a further argument that the legal construct of the military establishment is constitutionally questionable. Centering on the Cold War era from 1968 onward, this book weaves judicial biography and a historic methodology based on primary source materials into its analysis and reviews several military law judicial decisions ignored by other studies. This book is not designed only for legal scholars. Its intended audience consists of Cold War, military, and political historians, as well as political scientists, and, military and national security policy makers. Although the book’s conclusions are likely to be favored by the military establishment, the purpose of this book is to accurately analyze the intersection of the later twentieth century’s American military, political, social, and cultural history and the operation of the nation’s armed forces from a judicial vantage.

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Page Count

447

Publisher

Routledge

Published Date

ISBN 10

1317055772

ISBN 13

9781317055778

A Confederate in Congress

The Civil War Treason Trial of Benjamin Gwinn Harris

By: Joshua E. Kastenberg

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A Confederate in Congress

The Civil War Treason Trial of Benjamin Gwinn Harris

By: Joshua E. Kastenberg

In May 1865, the final month of the Civil War, the U.S. Army arrested and prosecuted a sitting congressman in a military trial in the border state of Maryland, though the federal criminal courts in the state were functioning. Convicted of aiding and abetting paroled Confederate soldiers, Benjamin Gwinn Harris of Maryland's Fifth Congressional District was imprisoned and barred from holding public office. Harris was a firebrand--effectively a Confederate serving in Congress--and had long advocated the constitutionality of slavery and the right of states to secede from the Union. This first-ever book-length analysis of the unusual trial examines the prevailing opinions in Southern Maryland and in the War Department regarding slavery, treason and the Constitution's guarantee of property rights and freedom of speech.

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Page Count

207

Publisher

McFarland

Published Date

ISBN 10

1476664897

ISBN 13

9781476664897

The Campaign to Impeach Justice William O. Douglas

Nixon, Vietnam, and the Conservative Attack on Judicial Independence

By: Joshua E. Kastenberg

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The Campaign to Impeach Justice William O. Douglas

Nixon, Vietnam, and the Conservative Attack on Judicial Independence

By: Joshua E. Kastenberg

The politics of division and distraction, conservatives’ claims of liberalism’s dangers, the wisdom of amoral foreign policy, a partisan challenge to a Supreme Court justice, and threats to the constitutionally mandated balance between the three branches of government: however of the moment these matters might seem, they are clearly presaged in events chronicled by Joshua E. Kastenberg in this book, the first in-depth account of a campaign to impeach Supreme Court justice William O. Douglas nearly fifty years ago. On April 15, 1970, at President Richard Nixon’s behest, Republican House Minority Leader Gerald Ford brazenly called for the impeachment of Douglas, the nation’s leading liberal judge—and the House Judiciary Committee responded with a six-month investigation, while the Senate awaited a potential trial that never occurred. Ford’s actions against Douglas mirrored the anger that millions of Americans, then as now, harbored toward changing social, economic, and moral norms, and a federal government seemingly unconcerned with the lives of everyday working white Americans. Those actions also reflected, as this book reveals, what came to be known as the Republicans’ “southern strategy,” a cynical attempt to exploit the hostility of white southern voters toward the civil rights movement. Kastenberg describes the political actors, ambitions, alliances, and maneuvers behind the move to impeach Douglas—including the Nixon administration’s vain hope of deflecting attention from a surprisingly unpopular invasion of Cambodia—and follows the ill-advised effort to its ignominious conclusion, with consequences that resonate to this day. Marking a turning point in American politics, The Campaign to Impeach Justice William O. Douglas is a sobering, cautionary tale, a critical chapter in the history of constitutional malfeasance, and a reminder of the importance of judicial independence in a politically polarized age.

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Page Count

336

Publisher

University Press of Kansas

Published Date

ISBN 10

0700628487

ISBN 13

9780700628483

Goldwater v. Carter

Foreign Policy, China, and the Resurgence of Executive Branch Primacy

By: Joshua E. Kastenberg

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Goldwater v. Carter

Foreign Policy, China, and the Resurgence of Executive Branch Primacy

By: Joshua E. Kastenberg

Goldwater v. Carter tells the story of the Supreme Court ruling that upheld President James Earl Carter’s unilateral decision to nullify the Sino-American Mutual Defense Treaty with the Republic of China (Taiwan), thereby enabling the United States to establish relations with the People's Republic of China. Senator Barry Goldwater and other members of Congress brought a lawsuit against Carter, arguing that the president needed Senate approval to take this action. President Carter’s actions in recognizing the Peoples’ Republic of China were both a continuation of a process begun by President Richard Nixon and a milestone in foreign policy that survived legal and political intervention. In their decision, the Supreme Court placed the removal of the United States from treaties squarely in the political, rather than the constitutional, arena. Goldwater contended that if Carter could withdraw from the treaty with Taiwan, then another president could theoretically withdraw from NATO and thereby endanger the global political order. Ironically, years later President Donald Trump, who stood in the mold of Goldwater’s brand of conservatism, posed this very threat. Joshua Kastenberg places the case of Goldwater v. Carter in the larger context of executive power. While presidential power had increased in the wake of FDR’s New Deal, Congress curbed this expansion during the Vietnam conflict, placing restrictions on the presidency in areas of foreign policy and national security that had not been seen since the defeat of the League of Nations in the Senate in 1919. The Court’s decision in favor of Carter, however, marked a return to the growth of the “imperial presidency,” which has only continued to expand.

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Page Count

224

Publisher

University Press of Kansas

Published Date

ISBN 10

0700635475

ISBN 13

9780700635474

To Raise and Discipline an Army

Major General Enoch Crowder, the Judge Advocate General’s Office, and the Realignment of Civil and Military Relations in World War I

By: Joshua Kastenberg

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To Raise and Discipline an Army

Major General Enoch Crowder, the Judge Advocate General’s Office, and the Realignment of Civil and Military Relations in World War I

By: Joshua Kastenberg

Major General Enoch Crowder served as the Judge Advocate General of the United States Army from 1911 to 1923. In 1915, Crowder convinced Congress to increase the size of the Judge Advocate General's Office—the legal arm of the United States Army—from thirteen uniformed attorneys to more than four hundred. Crowder's recruitment of some of the nation's leading legal scholars, as well as former congressmen and state supreme court judges, helped legitimize President Woodrow Wilson's wartime military and legal policies. As the United States entered World War I in 1917, the army numbered about 120,000 soldiers. The Judge Advocate General's Office was instrumental in extending the military's reach into the everyday lives of citizens to enable the construction of an army of more than four million soldiers by the end of the war. Under Crowder's leadership, the office was responsible for the creation and administration of the Selective Service Act, under which thousands of men were drafted into military service, as well as enforcement of the Espionage Act and wartime prohibition. In this first published history of the Judge Advocate General's Office between the years of 1914 and 1922, Joshua Kastenberg examines not only courts-martial, but also the development of the laws of war and the changing nature of civil-military relations. The Judge Advocate General's Office influenced the legislative and judicial branches of the government to permit unparalleled assertions of power, such as control over local policing functions and the economy. Judge advocates also altered the nature of laws to recognize a person's diminished mental health as a defense in criminal trials, influenced the assertion of US law overseas, and affected the evolving nature of the law of war. This groundbreaking study will appeal to scholars, students, and general readers of US history, as well as military, legal, and political historians.

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