Tag: Long Read
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Amendment 1
The First Amendment: Freedom of Expression Some people say the rights protected by the First Amendment are the most important in the entire Bill of Rights, because they are listed before the other nine amendments. However, in the original version of the Bill of Rights, what is now the First Amendment came third-after proposed amendments…
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Article III
Article III: The Judicial Branch Article III is the shortest, and least specific, of the constitutional provisions establishing the three branches of government. The framers of the Constitution spent far less time-and debate-on the judiciary than Congress or the president. Yet the power of unelected judges to overturn laws in a democracy has become one…
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Amendment 13
The Thirteenth Amendment: Abolishing Slavery From the beginning of the American republic, slaves argued that they, too, were included in the Declaration of Independence’s self-evident truth that “all men are created equal.” Sectional division over the “peculiar institution” of American slavery would plague the nation until at last it culminated in a civil war that…
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Amendment 6
The Sixth Amendment: The Right to a Fair Trial Colonial Americans had frequently experienced the disadvantages faced by those accused of crimes under English law. Therefore, as early as the Massachusetts Body of Liberties in 1641, they protected the right to a speedy trial, by a jury, and with counsel. After independence, many states also…
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Amendment 14
The Fourteenth Amendment: Equal Protection of the Laws Although the Thirteenth Amendment abolished slavery, it did not resolve the legal status of former slaves under federal and state law. After the Civil War, many southern states passed “Black Codes” designed to severely restrict the lives of newly freed slaves and keep them in virtual slavery.…
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Judicial Review
The Establishment of Judicial ReviewJudicial review is one of the distinctive features of United States constitutional law. It is no small wonder, then, to find that the power of the federal courts to test federal and state legislative enactments and other actions by the standards of what the Consti…
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History of Judicial Review
History of Judicial Review In “Judicial Review of Congress Before the Civil War” (THE GEORGETOWN LAW JOURNAL, Vol. 97:1257), by Keith E. Whittington, she said: “There is a standard story about the exercise of the power of judicial review by the U.S. Supreme Court before the Civil War. In this story, the Court was primarily…
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Judgments
Judgments in GeneralArticle IV, § 1, has had its principal operation in relation to judgments. Embraced within the relevant discussions are two principal classes of judgments. First, those in which the judgment involved was offered as a basis of proceedings for its own enforcement outside the s…
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Equality of States
Doctrine of the Equality of States"Equality of constitutional right and power is the condition of all the States of the Union, old and new." 258 This doctrine, now a truism of constitutional law, did not find favor in the Constitutional Convention. That body struck out from this section, a…
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Admiralty and Federalism
Admiralty and FederalismExtension of admiralty and maritime jurisdiction to navigable waters within a state does not, however, of its own force include general or political powers of government. Thus, in the absence of legislation by Congress, the states through their courts may punish offenses upon…
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Suits Against Officials
Suits Against United States OfficialsUnited States v. Lee, a 5-to-4 decision, qualified earlier holdings that a judgment affecting the property of the United States was in effect against the United States, by ruling that title to the Arlington estate of the Lee family, then being used as a national …
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Theory of Plenary Congressional Control Reconsidered
The Theory of Plenary Congressional Control ReconsideredDespite the breadth of the language of many of the previously cited cases, the actual holdings constitute something less than an affirmance of plenary congressional power to do anything it desires by manipulation of jurisdiction, and, indeed, t…
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Injunctions
Federal Restraint of State Courts by InjunctionsEven where the federal anti-injunction law is inapplicable, or where the question of application is not reached,1 those seeking to enjoin state court proceedings must overcome substantial prudential bar…
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Writ Scope
Habeas Corpus: Scope of the WritAt the English common law, habeas corpus was available to attack pretrial detention and confinement by executive order; it could not be used to question the conviction of a person pursuant to the judgment of a court with jurisdiction over the person. That common law m…
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Indian Tribes
Commerce With Indian TribesCongress's power to regulate commerce "with the Indian tribes," once almost rendered superfluous by Court decision,1 has now been resurrected and made largely the basis for informing judicial judgment with res…