Why did enduring traditions of economic and political liberty emerge in Western Europe and not elsewhere? Representative democracy, constitutionalism, and the rule of law are crucial for establishing a just and prosperous society, which we usually treat as the fruits of the Renaissance and Enlightenment, as Western European societies put the Dark Ages behind them. In The Medieval Constitution of Liberty, Salter and Young point instead to the constitutional order that characterized the High Middle Ages. They provide a historical account of how this constitutional order evolved following the fall of the Western Roman Empire. This account runs from the settlements of militarized Germanic elites within the imperial frontiers, to the host of successor kingdoms in the sixth and seventh centuries, and through the short-lived Carolingian empire of the late eighth and ninth centuries and the so-called “feudal anarchy” that followed its demise. Given this unique historical backdrop, Salter and Young consider the resulting structures of political property rights. They argue that the historical reality approximated a constitutional ideal type, which they term polycentric sovereignty. Salter and Young provide a theoretical analysis of polycentric sovereignty, arguing that bargains between political property rights holders within that sort of constitutional order will lead to improvements in governance.
The modern effort to locate American liberties, it turns out, began in the mud at the bottom of Baltimore harbor. John Barron Jr. and John Craig sued the city for damages after Baltimore’s rebuilt drainage system diverted water and sediment into the harbor, preventing large ships from tying up at Barron and Craig’s wharf. By the time the case reached the U.S. Supreme Court in 1833, the issue had become whether the city’s actions constituted a taking of property by the state without just compensation, a violation of the Fifth Amendment to the U.S. Constitution. The high court’s decision in Barron v. Baltimore marked a critical step in the rapid evolution of law and constitutional rights during the first half of the nineteenth century. Diminishing the Bill of Rights examines the backstory and context of this decision as a turning point in the development of our current conception of individual rights. Since the colonial period, Americans had viewed their rights as springing from multiple sources, including the common law, natural right, and English legal tradition. Despite this rich heritage and a prohibition grounded in the Magna Carta against uncompensated state takings of property, the Court ruled against Barron’s claim. The Bill of Rights, Chief Justice John Marshall declared in his opinion for the majority, restrained only the federal government, not the states. The Fifth Amendment, accordingly, did not apply to Maryland or any of the cities it chartered. In explaining how the Court came to reject a multisourced view of human liberties—a position seemingly inconsistent with its previous decisions—William Davenport Mercer helps explain why we now envision the Constitution as essential to guaranteeing our rights. Marshall’s view of rights in Barron, Mercer argues, helped him navigate the Court through the precarious political currents of the time. While the chief justice may have effected a shrewd political maneuver, the decision helped hasten a reconceptualization of rights as located in documents. Its legacy, as Mercer’s work makes clear, is among the Jacksonian era’s significant democratic reforms and marks the emergence of a distinctly American constitutionalism.
This brief, accessible, and inexpensive supplement on American courts and their functions provides undergraduate, or first-year law students, with an understanding of the key substantive and procedural concepts that they need to know to study the law or the judicial process. Recognizing that there are many substantive and procedural concepts about American courts that students must first grasp in order to study the law or the judicial process, this brief text answers important questions about justiciability, standing, jurisdiction, and judicial power. With a stronger historical context, this text is a perfect complement to a text on Constitutional Law, Judicial Process, or a legal casebook, and will help students master the legal vocabulary with which they are confronted.
The Birth of the Modern Constitution recounts the history of the United States Supreme Court in the momentous yet usually overlooked years between the constitutional revolution in the 1930s and Warren-Court judicial activism in the 1950s. 1941-1953 marked the emergence of legal liberalism, in the divergent activist efforts of Hugo Black, William O. Douglas, Frank Murphy, and Wiley Rutledge. The Stone/Vinson Courts consolidated the revolutionary accomplishments of the New Deal and affirmed the repudiation of classical legal thought, but proved unable to provide a substitute for that powerful legitimating explanatory paradigm of law. Hence the period bracketed by the dramatic moments of 1937 and 1954, written off as a forgotten time of failure and futility, was in reality the first phase of modern struggles to define the constitutional order that will dominate the twenty-first century.
The activist state of the New Deal started forming decades before the FDR administration, demonstrating the deep roots of energetic government in America. In the period between the Civil War and the New Deal, American governance was transformed, with momentous implications for social and economic life. A series of legal reforms gradually brought an end to nineteenth-century traditions of local self-government and associative citizenship, replacing them with positive statecraft: governmental activism intended to change how Americans lived and worked through legislation, regulation, and public administration. The last time American public life had been so thoroughly altered was in the late eighteenth century, at the founding and in the years immediately following. William J. Novak shows how Americans translated new conceptions of citizenship, social welfare, and economic democracy into demands for law and policy that delivered public services and vindicated peopleÕs rights. Over the course of decades, Americans progressively discarded earlier understandings of the reach and responsibilities of government and embraced the idea that legislators and administrators in Washington could tackle economic regulation and social-welfare problems. As citizens witnessed the successes of an energetic, interventionist state, they demanded more of the same, calling on politicians and civil servants to address unfair competition and labor exploitation, form public utilities, and reform police power. Arguing against the myth that America was a weak state until the New Deal, New Democracy traces a steadily aggrandizing authority well before the Roosevelt years. The United States was flexing power domestically and intervening on behalf of redistributive goals for far longer than is commonly recognized, putting the lie to libertarian claims that the New Deal was an aberration in American history.
Republishes articles by two senior legal historians. Besides summarizing what has now become classical literature in the field, it offers illuminating insight into what it means to be a professional legal historian.
After its early introduction into the English colonies in North America, slavery in the United States lasted as a legal institution until the passage of the Thirteenth Amendment to the Constitution in 1865. But increasingly during the contested politics of the early republic, abolitionists cried out that the Constitution itself was a slaveowners’ document, produced to protect and further their rights. A Slaveholders’ Union furthers this unsettling claim by demonstrating once and for all that slavery was indeed an essential part of the foundation of the nascent republic. In this powerful book, George William Van Cleve demonstrates that the Constitution was pro-slavery in its politics, its economics, and its law. He convincingly shows that the Constitutional provisions protecting slavery were much more than mere “political” compromises—they were integral to the principles of the new nation. By the late 1780s, a majority of Americans wanted to create a strong federal republic that would be capable of expanding into a continental empire. In order for America to become an empire on such a scale, Van Cleve argues, the Southern states had to be willing partners in the endeavor, and the cost of their allegiance was the deliberate long-term protection of slavery by America’s leaders through the nation’s early expansion. Reconsidering the role played by the gradual abolition of slavery in the North, Van Cleve also shows that abolition there was much less progressive in its origins—and had much less influence on slavery’s expansion—than previously thought. Deftly interweaving historical and political analyses, A Slaveholders’ Union will likely become the definitive explanation of slavery’s persistence and growth—and of its influence on American constitutional development—from the Revolutionary War through the Missouri Compromise of 1821.
The relationship between the Syrian Orthodox Church in the Ottoman Empire and the Church of England developed substantially between 1895 and 1914, as contacts between them grew. As the character of this emerging relationship changed, it contributed to the formation of both churches’ own ‘narratives of identity’. The wider context in which this took place was a period of instability in the international order, particularly within the Ottoman Empire, culminating in the outbreak of the First World War, effectively bringing this phase of sustained contact to an end. Narratives of Identity makes use of Syriac, Garshuni, and Arabic primary sources from Syrian Orthodox archives in Turkey and Syria, alongside Ottoman documents from the Başbakanlık Osmanlı Arşivi, Istanbul, and a range of English archival sources. The preconceptions of both Churches are analysed, using a philosophical framework provided by the work of Paul Ricoeur, especially his concepts of significant memory (anamnesis), translation, and the search for mutual recognition. Anamnesis and translation were extensively employed in the formation of ‘narratives of identity’ that needed to be understood by both Churches. The identity claims of the Tractarian section of the Church of England and of the Ottoman Syrian Orthodox Church are examined using this framework. The detailed content of the theological dialogue between them, is then examined, and placed in the context of the rapidly changing demography of eastern Anatolia, the Syrian Orthodox ‘heartland’. The late Ottoman state was characterised by an increased instability for all its non-Muslim minorities, which contributed to the perceived threats to Ottoman Syrian Orthodoxy, both from within and without. Finally, a new teleological framework is proposed in order to better understand these exchanges, taking seriously the amamnetic insights of the narratives of identity of both the Syrian Orthodox Church and the Church of England from 1895 to 1914.
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