Thomas Jefferson’s one-time image as a serious opponent of slavery has been heavily criticized by academics for nearly fifty years. Indeed, Jefferson’s reputation as a principal and principled progenitor of the American political tradition suffered badly in the closing decades of the Twentieth Century as historians, cultural commentators, and legal scholars focused on his racism, personal commitments to slavery, and intimate relationship with Sally Hemings, the enslaved Monticello domestic who was almost certainly the mother of one or more of his children. But while progressive thinkers soured on Jefferson at the close of the Twentieth Century, many libertarians, small government enthusiasts, neo-federalists, and champions of civic virtue remained committed to ideals and rhetoric they associated with Jefferson more than with any other founding father. When the Tea Party movement exploded onto the national political scene in the 2010 election, critics of the modern American state were quick to laud Jefferson as the favored spokesman of an allegedly simpler and purer alternative to the corrupted and degenerate federal government of the present. The original conception of America the Tea Party claimed to favor was, its members maintained, quintessentially Jeffersonian. Clearly, the Jefferson image retains power in contemporary political debates. But which image of the complex third President and drafter of the Declaration of Independence is most accurate, and which is most legitimately harnessed by citizens fighting to define the American creed in our times? Was Jefferson essentially a hypocritical racist who favored small government to protect slaveholder interests, or was he at heart a champion a universal liberty who envisioned a special role for the United States in human destiny? In this Article, I analyze the intricate relation between slavery, freedom, and the birth of the American creed by reassessing the earliest period of Jefferson’s public career when he practiced law in Virginia’s colonial capital Williamsburg, served as a member of the colonial assembly, the House of Burgesses, authored the Summary view of the Rights of British North America in 1774, and served as the principal draftsman of the Declaration of Independence in 1776. After exploring Jefferson’s legal education and the law of slavery in late colonial Virginia, the Article surveys Jefferson’s seven-year career as a property lawyer. It analyzes in detail Jefferson’s argument in Howell v. Netherland, a freedom suit appealed to the General Court of Virginia in 1770, and then considers his rhetoric respecting African slavery and alleged plans for political enslavement of British North America in his classic early constitutional state papers the Summary View and the Declaration of Independence. The natural rights arguments Jefferson employed in Howell v. Netherland, the Summary View, and the Declaration of Independence reflected a philosophy essentially inimical to human slavery.
托马斯·杰斐逊一度严肃反对奴隶制的形象在近50年来一直受到学术界的严厉批评。事实上，杰斐逊作为美国政治传统的主要和有原则的先驱的声誉在20世纪的最后几十年受到严重损害，因为历史学家、文化评论家和法律学者把注意力集中在他的种族主义、对奴隶制的个人承诺以及与萨利·海明斯的亲密关系上。萨利·海明斯是蒙蒂塞洛被奴役的家庭成员，几乎可以肯定她是他一个或多个孩子的母亲。但是，虽然进步思想家在20世纪末对杰斐逊感到不满，但许多自由意志主义者、小政府爱好者、新联邦主义者和公民美德的捍卫者仍然致力于与杰斐逊联系在一起的理想和言论，而不是其他任何开国元勋。当茶党运动在2010年的选举中席卷全国政治舞台时，现代美国政府的批评者们很快就称赞杰斐逊是受欢迎的发言人，他宣称要用一种据称更简单、更纯粹的方式来取代目前腐败堕落的联邦政府。茶党成员坚持认为，茶党最初主张的美国观是典型的杰斐逊主义。显然，杰斐逊的形象在当代政治辩论中仍具有影响力。但是，对于这位复杂的第三任总统和《独立宣言》起草者，哪一种形象最准确?在我们这个时代，哪一种形象最合理地被公民们用来定义美国信条?杰弗逊本质上是一个虚伪的种族主义者，他支持小政府来保护奴隶主的利益，还是他内心深处是一个普遍自由的捍卫者，他设想美国在人类命运中扮演一个特殊的角色?在这篇文章中，我将通过重新评估杰斐逊公共生涯的早期阶段，分析奴隶制、自由和美国信条诞生之间错综复杂的关系。杰斐逊在弗吉尼亚州殖民地首府威廉斯堡从事法律工作，担任殖民地议会议员，1774年撰写了《英属北美权利概述》，并于1776年担任《独立宣言》的主要起草人。在探讨了杰斐逊的法律教育和弗吉尼亚殖民地晚期的奴隶制之后，文章回顾了杰斐逊七年的财产律师生涯。它详细分析了杰斐逊在1770年向弗吉尼亚普通法院提起的关于自由的诉讼Howell v. Netherland一案中的论点，然后考虑了他在其经典的早期宪法文件《总结观点》和《独立宣言》中对非洲奴隶制和所谓的英属北美政治奴役计划的言论。杰斐逊在豪厄尔诉尼德兰案、《总结意见》和《独立宣言》中使用的自然权利论点反映了一种本质上反对人类奴隶制的哲学。与此同时，杰斐逊作为学生和实践者对地产的细致理解使他思考财产的冲突和多重利益，而不是罗马式的统治或绝对无条件所有权的概念。这种受历史制约的对财产的理解使杰斐逊质疑人类物化的适当性和可辩护性。在后来的生活中，当他在制定新美国国家的政策中发挥主导作用时，杰斐逊把非裔美国人的自由要求放在了次要地位。但在18世纪70年代早期，杰斐逊，作为一个省奴隶主和普通律师，他接受了进步的反奴隶制信条，而这些信条与那些激励着英格兰和北方新生的反奴隶制先锋的信条并没有什么不同。他不是茶党运动中极端分子推崇的反自由主义激进分子，也不是当代一些直言不讳的进步人士所痛骂的卡尔豪尼(calhouite)式的奴隶权力捍卫者，而是革命时期的杰斐逊，他是一位真诚的奴隶制反对者。不幸的是，随着革命危机的展开，杰斐逊逐渐学会了政治上的效用，接受一种更加谨慎和有条件的话语模式，尊重反奴隶制的目标，以及一种更加渐进的方法来解决一个公开宣称的民主和共和政体的政治和道德合法性问题，而这个政体(像杰斐逊自己一样)在经济和文化上仍然严重依赖于对人类同胞的奴役。早在1776年，务实的杰斐逊就已经很好地理解了，对于一个希望在一个君主和帝国主义的世界里建立一个致力于共和原则的美国联盟的南方政治家来说，合理的反奴隶制是有严格限制的。
{"title":"A Founding Father on Trial: Jefferson’s Rights Talk and the Problem of Slavery During the Revolutionary Period","authors":"W. Merkel","doi":"10.2139/SSRN.1924443","DOIUrl":"https://doi.org/10.2139/SSRN.1924443","url":null,"abstract":"Thomas Jefferson’s one-time image as a serious opponent of slavery has been heavily criticized by academics for nearly fifty years. Indeed, Jefferson’s reputation as a principal and principled progenitor of the American political tradition suffered badly in the closing decades of the Twentieth Century as historians, cultural commentators, and legal scholars focused on his racism, personal commitments to slavery, and intimate relationship with Sally Hemings, the enslaved Monticello domestic who was almost certainly the mother of one or more of his children. But while progressive thinkers soured on Jefferson at the close of the Twentieth Century, many libertarians, small government enthusiasts, neo-federalists, and champions of civic virtue remained committed to ideals and rhetoric they associated with Jefferson more than with any other founding father. When the Tea Party movement exploded onto the national political scene in the 2010 election, critics of the modern American state were quick to laud Jefferson as the favored spokesman of an allegedly simpler and purer alternative to the corrupted and degenerate federal government of the present. The original conception of America the Tea Party claimed to favor was, its members maintained, quintessentially Jeffersonian. Clearly, the Jefferson image retains power in contemporary political debates. But which image of the complex third President and drafter of the Declaration of Independence is most accurate, and which is most legitimately harnessed by citizens fighting to define the American creed in our times? Was Jefferson essentially a hypocritical racist who favored small government to protect slaveholder interests, or was he at heart a champion a universal liberty who envisioned a special role for the United States in human destiny? In this Article, I analyze the intricate relation between slavery, freedom, and the birth of the American creed by reassessing the earliest period of Jefferson’s public career when he practiced law in Virginia’s colonial capital Williamsburg, served as a member of the colonial assembly, the House of Burgesses, authored the Summary view of the Rights of British North America in 1774, and served as the principal draftsman of the Declaration of Independence in 1776. After exploring Jefferson’s legal education and the law of slavery in late colonial Virginia, the Article surveys Jefferson’s seven-year career as a property lawyer. It analyzes in detail Jefferson’s argument in Howell v. Netherland, a freedom suit appealed to the General Court of Virginia in 1770, and then considers his rhetoric respecting African slavery and alleged plans for political enslavement of British North America in his classic early constitutional state papers the Summary View and the Declaration of Independence. The natural rights arguments Jefferson employed in Howell v. Netherland, the Summary View, and the Declaration of Independence reflected a philosophy essentially inimical to human slavery.","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":"50 1","pages":"595-663"},"PeriodicalIF":0.0,"publicationDate":"2011-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67790428","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article challenges our persistent path dependence on defunct distinctions between corporations and certain limited unincorporated associations. Recent federal tax regulations have inspired proposals for consolidated treatment of all limited business organizations through uniformly based or universally applicable statutes. I contend these proposals are preoccupied with how hybrid organizations such as the limited liability company and the limited liability partnership amalgamate, and thus implicitly preserve, traditional dichotomies between corporations and partnership categorizations as well as entities and aggregate theories. The continued use of these schemes compromises the legal basis for such proposals. By critically examining certain jurisdictional principles, this article reveals inconsistencies that can serve as an entry point for effecting collapse of distinctions between corporations and certain limited unincorporated associations. Specifically, United States citizens domiciled abroad are "stateless" and so cannot sue or be sued in federal courts under the alienage jurisdiction statute. Under the prevailing jurisdictional test, unincorporated associations with stateless members inherit this incapacity to access federal courts for alienage purposes while corporations do not. These radically different outcomes are the product of outmoded and untenable common law and statutory schemes. As a solution, I propose implementing a citizenship test based on domicile for both stateless individuals and unincorporated associations. Such a test would rectify these schemes and provide a framework that can support uniform treatment of all limited business organizations.
{"title":"A Jurisdictional Approach to Collapsing Corporate Distinctions","authors":"Peter B. Oh","doi":"10.2139/SSRN.328923","DOIUrl":"https://doi.org/10.2139/SSRN.328923","url":null,"abstract":"This article challenges our persistent path dependence on defunct distinctions between corporations and certain limited unincorporated associations. Recent federal tax regulations have inspired proposals for consolidated treatment of all limited business organizations through uniformly based or universally applicable statutes. I contend these proposals are preoccupied with how hybrid organizations such as the limited liability company and the limited liability partnership amalgamate, and thus implicitly preserve, traditional dichotomies between corporations and partnership categorizations as well as entities and aggregate theories. The continued use of these schemes compromises the legal basis for such proposals. By critically examining certain jurisdictional principles, this article reveals inconsistencies that can serve as an entry point for effecting collapse of distinctions between corporations and certain limited unincorporated associations. Specifically, United States citizens domiciled abroad are \"stateless\" and so cannot sue or be sued in federal courts under the alienage jurisdiction statute. Under the prevailing jurisdictional test, unincorporated associations with stateless members inherit this incapacity to access federal courts for alienage purposes while corporations do not. These radically different outcomes are the product of outmoded and untenable common law and statutory schemes. As a solution, I propose implementing a citizenship test based on domicile for both stateless individuals and unincorporated associations. Such a test would rectify these schemes and provide a framework that can support uniform treatment of all limited business organizations.","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":"55 1","pages":"389"},"PeriodicalIF":0.0,"publicationDate":"2011-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68582231","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Originalism has focused the attention of courts and academics on Framing Era history to interpret constitutional limits on police conduct. Previously unexplored sources reveal, however, that Framing Era limits on officers were expressly abandoned as professional police forces were created in the mid-nineteenth century and charged with aggressively investigating and preventing crime. The modern scheme of judicially supervised police investigations was then implemented after corruption and scandals of the 1920s. The development of modern criminal procedure has a rich historical background, but it has almost nothing to do with the events of the Framing Era.
{"title":"The Neglected History of Criminal Procedure, 1850-1940","authors":"Wesley M. Oliver","doi":"10.2139/SSRN.1463746","DOIUrl":"https://doi.org/10.2139/SSRN.1463746","url":null,"abstract":"Originalism has focused the attention of courts and academics on Framing Era history to interpret constitutional limits on police conduct. Previously unexplored sources reveal, however, that Framing Era limits on officers were expressly abandoned as professional police forces were created in the mid-nineteenth century and charged with aggressively investigating and preventing crime. The modern scheme of judicially supervised police investigations was then implemented after corruption and scandals of the 1920s. The development of modern criminal procedure has a rich historical background, but it has almost nothing to do with the events of the Framing Era.","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":"62 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2009-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68184112","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article examines the problematic application of summary judgment in federal courts through a study of gender cases. Identifying a new dimension of the interrelationship between procedure and gender, I examine the ways in which summary judgment impacts on cases involving gender and gender impacts on judicial decisionmaking on summary judgment, with emphasis on the intersection of Daubert and summary judgment. I analyze summary judgment in federal gender discrimination and tort cases involving women plaintiffs and argue that there is flawed judicial decisionmaking in these cases. I describe empirical data compiled for this Article on whether summary judgment is granted disproportionately against women plaintiffs in federal court. I discuss the special problems of judicial determination of these cases, issues of gender and judging and the need for more diverse decisionmaking, the need for these cases to be heard through live testimony in a public forum, and the way in which summary judgment practice reinforces the troubling "privatization" of federal civil litigation. I conclude that judicial decisionmaking in these cases illustrates the way in which current summary judgment practice permits subtle bias to go unchecked and reveals the dangers of summary judgment generally.
{"title":"The Dangers of Summary Judgment: Gender and Federal Civil Litigation","authors":"E. Schneider","doi":"10.2139/SSRN.968834","DOIUrl":"https://doi.org/10.2139/SSRN.968834","url":null,"abstract":"This Article examines the problematic application of summary judgment in federal courts through a study of gender cases. Identifying a new dimension of the interrelationship between procedure and gender, I examine the ways in which summary judgment impacts on cases involving gender and gender impacts on judicial decisionmaking on summary judgment, with emphasis on the intersection of Daubert and summary judgment. I analyze summary judgment in federal gender discrimination and tort cases involving women plaintiffs and argue that there is flawed judicial decisionmaking in these cases. I describe empirical data compiled for this Article on whether summary judgment is granted disproportionately against women plaintiffs in federal court. I discuss the special problems of judicial determination of these cases, issues of gender and judging and the need for more diverse decisionmaking, the need for these cases to be heard through live testimony in a public forum, and the way in which summary judgment practice reinforces the troubling \"privatization\" of federal civil litigation. I conclude that judicial decisionmaking in these cases illustrates the way in which current summary judgment practice permits subtle bias to go unchecked and reveals the dangers of summary judgment generally.","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":"59 1","pages":"705"},"PeriodicalIF":0.0,"publicationDate":"2007-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67915590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Altruism's limits: law, capacity, and organ commodification.","authors":"Michele Goodwin","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":"56 2","pages":"305-407"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26071733","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article examines the role of judicial deference in a modern democracy. As a general rule, judges defer to laws that are enacted by legislatures. The Author disputes the view that judges defer to legislatures because legislatures are more majoritarian than judges. In refuting this view, the Author describes and discusses the main decision-making processes of a modern democracy, including aggregation processes such as majoritarian politics, legislative processes, economic markets, and civil society, as well as normative systems such as judiciaries, bureaucracies, and professionals. The Author contends that in order to understand and appreciate the role of judicial deference, we must distinguish judicial reasoning from these other decisionmaking institutions. While the boundaries between these institutions are quite flexible, often overlapping, and sometimes incoherent, the distinctions between them need not (and can not) be disregarded if we are to understand and appreciate the implicit natures and individual characteristics of each. The Author suggests that re-inflating the collapsed distinctions between these institutions will set the groundwork for a new and improved analysis of each.
{"title":"Beyond the Counter-Majoritarian Difficulty: Judicial Decision-Making in a Polynomic World","authors":"D. Greenwood","doi":"10.2139/SSRN.757313","DOIUrl":"https://doi.org/10.2139/SSRN.757313","url":null,"abstract":"This Article examines the role of judicial deference in a modern democracy. As a general rule, judges defer to laws that are enacted by legislatures. The Author disputes the view that judges defer to legislatures because legislatures are more majoritarian than judges. In refuting this view, the Author describes and discusses the main decision-making processes of a modern democracy, including aggregation processes such as majoritarian politics, legislative processes, economic markets, and civil society, as well as normative systems such as judiciaries, bureaucracies, and professionals. The Author contends that in order to understand and appreciate the role of judicial deference, we must distinguish judicial reasoning from these other decisionmaking institutions. While the boundaries between these institutions are quite flexible, often overlapping, and sometimes incoherent, the distinctions between them need not (and can not) be disregarded if we are to understand and appreciate the implicit natures and individual characteristics of each. The Author suggests that re-inflating the collapsed distinctions between these institutions will set the groundwork for a new and improved analysis of each.","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":"53 1","pages":"781"},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67821193","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Separation of the conjoined twins: a comparative analysis of the rights to privacy and religious freedom in Great Britain and the United States.","authors":"Jacqueline B Tomasso","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":"54 3","pages":"771-801"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24596945","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article addresses the problems with our nation's cultural and legal prohibitions against certain pain management treatments. The practice of pain management has not kept pace with the many medical advances that have made it possible for physicians to ameliorate most pain. The Author notes that some patients are denied access to certain forms of treatments due to the mistaken belief that addiction may ensue. Additionally, some individuals are under-treated for their pain to a greater degree than are others. This is especially the case for our nation's prisoners. The Author contends that prisoners are frequently denied effective pain amelioration. He notes, however, that there has been improvement in medical treatment in general for prisoners due to court challenges based on the Eighth Amendment's prohibition against cruel and unusual punishment. Yet, due to the protection of qualified immunity given to jailers and prison health care providers, prisoners cannot bring a claim for negligence or medical malpractice, they must allege a violation of their constitutional rights, a significantly higher legal standard. Prisoners must meet a subjective test showing that there was a deliberate indifference to their medical needs that violates the protection of the Eighth Amendment. The Author concludes that because medical advances have made it possible to alleviate most pain suffering, withholding pain treatment or providing a less effective treatment is tantamount to inflicting pain and should be viewed as a violation of the Eighth Amendment.
{"title":"Raising the \"civilized minimum\" of pain amelioration for prisoners to avoid cruel and unusual punishment.","authors":"James McGrath","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This Article addresses the problems with our nation's cultural and legal prohibitions against certain pain management treatments. The practice of pain management has not kept pace with the many medical advances that have made it possible for physicians to ameliorate most pain. The Author notes that some patients are denied access to certain forms of treatments due to the mistaken belief that addiction may ensue. Additionally, some individuals are under-treated for their pain to a greater degree than are others. This is especially the case for our nation's prisoners. The Author contends that prisoners are frequently denied effective pain amelioration. He notes, however, that there has been improvement in medical treatment in general for prisoners due to court challenges based on the Eighth Amendment's prohibition against cruel and unusual punishment. Yet, due to the protection of qualified immunity given to jailers and prison health care providers, prisoners cannot bring a claim for negligence or medical malpractice, they must allege a violation of their constitutional rights, a significantly higher legal standard. Prisoners must meet a subjective test showing that there was a deliberate indifference to their medical needs that violates the protection of the Eighth Amendment. The Author concludes that because medical advances have made it possible to alleviate most pain suffering, withholding pain treatment or providing a less effective treatment is tantamount to inflicting pain and should be viewed as a violation of the Eighth Amendment.</p>","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":"54 3","pages":"649-84"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24578645","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the last decade or so, the Supreme Court has revitalized judicial enforcement of federalism. This development has spurred the partisans of Herbert Wechsler's "political safeguards of federalism" to begin a serious investigation of the ways in which extra-judicial politics can and does substitute for and complement the judicial role in enforcing federalism and the Constitution. Similarly, constitutional scholars have turned in increasing numbers to the question of how even judicially promulgated doctrines of constitutional law turn out to be more derivative of popular politics than vice versa. Necessarily, much of the investigation on both fronts has turned historical and has turned to the central institution of popular politics in this country - the political party. This article is an effort to clarify the origins of the political party as a core institution of the American constitutional order - an institution unmentioned in the Constitution itself and, in fact, an institution to which the Founders were deeply hostile. The article focuses on the constitutional thought and political action of Martin Van Buren, the chief figure in the origins of American party politics in the early nineteenth century. Van Buren was the leader and virtual creator of the first, permanent mass political party, and he was its chief theorist as well. Brilliantly constructing a theory by which the antiparty American polity might accept the constitutional necessity of party organization, Van Buren drew on the vital political issues of his day to argue that only a truly democratic party - not the Supreme Court - could preserve and enforce the Constitution's most fundamental principles, including federalism and coordinate construction. Like most successful revolutions, Van Buren's constitutional revolution turned out to have all sorts of unintended consequences, but Van Buren's work remains foundational to American governance. Substantially anticipating both the modern Supreme Court's Garcia doctrine and modern scholars' emphasis on constitutional law's dependence on constitutional politics, Van Buren's thought and action reveals how constitutional law has always been a matter of negotiation between judicial politics and party politics, never simply a matter of case law.
{"title":"Party as a 'Political Safeguard of Federalism': Martin Van Buren and the Constitutional Theory of Party Politics","authors":"G. Leonard","doi":"10.2139/SSRN.289004","DOIUrl":"https://doi.org/10.2139/SSRN.289004","url":null,"abstract":"In the last decade or so, the Supreme Court has revitalized judicial enforcement of federalism. This development has spurred the partisans of Herbert Wechsler's \"political safeguards of federalism\" to begin a serious investigation of the ways in which extra-judicial politics can and does substitute for and complement the judicial role in enforcing federalism and the Constitution. Similarly, constitutional scholars have turned in increasing numbers to the question of how even judicially promulgated doctrines of constitutional law turn out to be more derivative of popular politics than vice versa. Necessarily, much of the investigation on both fronts has turned historical and has turned to the central institution of popular politics in this country - the political party. This article is an effort to clarify the origins of the political party as a core institution of the American constitutional order - an institution unmentioned in the Constitution itself and, in fact, an institution to which the Founders were deeply hostile. The article focuses on the constitutional thought and political action of Martin Van Buren, the chief figure in the origins of American party politics in the early nineteenth century. Van Buren was the leader and virtual creator of the first, permanent mass political party, and he was its chief theorist as well. Brilliantly constructing a theory by which the antiparty American polity might accept the constitutional necessity of party organization, Van Buren drew on the vital political issues of his day to argue that only a truly democratic party - not the Supreme Court - could preserve and enforce the Constitution's most fundamental principles, including federalism and coordinate construction. Like most successful revolutions, Van Buren's constitutional revolution turned out to have all sorts of unintended consequences, but Van Buren's work remains foundational to American governance. Substantially anticipating both the modern Supreme Court's Garcia doctrine and modern scholars' emphasis on constitutional law's dependence on constitutional politics, Van Buren's thought and action reveals how constitutional law has always been a matter of negotiation between judicial politics and party politics, never simply a matter of case law.","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":"23 1","pages":"221"},"PeriodicalIF":0.0,"publicationDate":"2001-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68421244","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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