CHAPTER 6 Jeffersonian Democracy
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Early Understandings of the "Judicial Power" in Statutory Interpretation
ARTICLE ALL ABOUT WORDS: EARLY UNDERSTANDINGS OF THE 'JUDICIAL POWER" IN STATUTORY INTERPRETATION, 1776-1806 William N. Eskridge, Jr.* What understandingof the 'judicial Power" would the Founders and their immediate successors possess in regard to statutory interpretation? In this Article, ProfessorEskridge explores the background understandingof the judiciary's role in the interpretationof legislative texts, and answers earlier work by scholars like ProfessorJohn Manning who have suggested that the separation of powers adopted in the U.S. Constitution mandate an interpre- tive methodology similar to today's textualism. Reviewing sources such as English precedents, early state court practices, ratifying debates, and the Marshall Court's practices, Eskridge demonstrates that while early statutory interpretationbegan with the words of the text, it by no means confined its searchfor meaning to the plain text. He concludes that the early practices, especially the methodology ofJohn Marshall,provide a powerful model, not of an anticipatory textualism, but rather of a sophisticated methodology that knit together text, context, purpose, and democratic and constitutionalnorms in the service of carrying out the judiciary's constitutional role. TABLE OF CONTENTS Introduction .................................................... 991 I. Three Nontextualist Powers Assumed by English Judges, 1500-1800 ............................................... 998 A. The Ameliorative Power .............................. 999 B. Suppletive Power (and More on the Ameliorative Pow er) .............................................. 1003 C. Voidance Power ..................................... 1005 II. Statutory Interpretation During the Founding Period, 1776-1791 ............................................... 1009 * John A. Garver Professor ofJurisprudence, Yale Law School. I am indebted toJohn Manning for sharing his thoughts about the founding and consolidating periods; although we interpret the materials differently, I have learned a lot from his research and arguments. -
Volume II: Rights and Liberties Howard Gillman, Mark A. Graber
AMERICAN CONSTITUTIONALISM Volume II: Rights and Liberties Howard Gillman, Mark A. Graber, and Keith E. Whittington INDEX OF MATERIALS ARCHIVE 1. Introduction 2. The Colonial Era: Before 1776 I. Introduction II. Foundations A. Sources i. The Massachusetts Body of Liberties B. Principles i. Winthrop, “Little Speech on Liberty” ii. Locke, “The Second Treatise of Civil Government” iii. The Putney Debates iv. Blackstone, “Commentaries on the Laws of England” v. Judicial Review 1. Bonham’s Case 2. Blackstone, “Commentaries on the Laws of England” C. Scope i. Introduction III. Individual Rights A. Property B. Religion i. Establishment 1. John Witherspoon, The Dominion of Providence over the Passions of Man ii. Free Exercise 1. Ward, The Simple Cobler of Aggawam in America 2. Penn, “The Great Case of Liberty of Conscience” C. Guns i. Guns Introduction D. Personal Freedom and Public Morality i. Personal Freedom and Public Morality Introduction ii. Blackstone, “Commentaries on the Laws of England” IV. Democratic Rights A. Free Speech B. Voting i. Voting Introduction C. Citizenship i. Calvin’s Case V. Equality A. Equality under Law i. Equality under Law Introduction B. Race C. Gender GGW 9/5/2019 D. Native Americans VI. Criminal Justice A. Due Process and Habeas Corpus i. Due Process Introduction B. Search and Seizure i. Wilkes v. Wood ii. Otis, “Against ‘Writs of Assistance’” C. Interrogations i. Interrogations Introduction D. Juries and Lawyers E. Punishments i. Punishments Introduction 3. The Founding Era: 1776–1791 I. Introduction II. Foundations A. Sources i. Constitutions and Amendments 1. The Ratification Debates over the National Bill of Rights a. -
Just Because John Marshall Said It, Doesn't Make It So: Ex Parte
Maurice A. Deane School of Law at Hofstra University Scholarly Commons at Hofstra Law Hofstra Law Faculty Scholarship 2000 Just Because John Marshall Said it, Doesn't Make it So: Ex Parte Bollman and the Illusory Prohibition on the Federal Writ of Habeas Corpus for State Prisoners in the Judiciary Act of 1789 Eric M. Freedman Maurice A. Deane School of Law at Hofstra University Follow this and additional works at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship Recommended Citation Eric M. Freedman, Just Because John Marshall Said it, Doesn't Make it So: Ex Parte Bollman and the Illusory Prohibition on the Federal Writ of Habeas Corpus for State Prisoners in the Judiciary Act of 1789, 51 Ala. L. Rev. 531 (2000) Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/53 This Article is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Faculty Scholarship by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. MILESTONES IN HABEAS CORPUS: PART I JUST BECAUSE JOHN MARSHALL SAID IT, DOESN'T MAKE IT So: Ex PARTE BoLLMAN AND THE ILLUSORY PROHIBITION ON THE FEDERAL WRIT OF HABEAS CORPUS FOR STATE PRISONERS IN THE JUDIcIARY ACT OF 1789 Eric M. Freedman* * Professor of Law, Hofstra University School of Law ([email protected]). BA 1975, Yale University;, MA 1977, Victoria University of Wellington (New Zea- land); J.D. 1979, Yale University. This work is copyrighted by the author, who retains all rights thereto. -
Early 19C America: Cultural Nationalism
OPENING- SAFE PLANS Study for Ch. 10 Quiz! • Jefferson (Democratic • Hamilton (Federalists) Republicans) • S-Strict Interpretation • P-Propertied and rich (State’s Rights men • A-Agriculture (Farmers) • L-Loose Interpretation • F-France over Great Britain • A-Army • E-Educated and common • N-National Bank man • S-Strong central government Jeffersonian Republic 1800-1812 The Big Ideas Of This Chapter 1. Jefferson’s effective, pragmatic policies strengthened the principles of two-party republican gov’t - even though Jeffersonian “revolution” caused sharp partisan battles 2. Despite his intentions, Jefferson became deeply entangled in the foreign-policy conflicts of the Napoleonic era, leading to a highly unpopular and failed embargo that revived the moribund Federalist Party 3. James Madison fell into an international trap, set by Napoleon, that Jefferson had avoided. The country went to war against Britain. Western War Hawks’ enthusiasm for a war with Britain was matched by New Englanders’ hostility. “We are all Republicans, we are all Federalists” Is that true? Economically? Some historians say they are the same b/w Jefferson and Hamilton both dealt with rich people - be they merchants or southern planters Some historians say they are the same b/c Jefferson did not hold to his “Strict Constructionist” theory because 1. Louisiana purchase 2. Allowing the Nat’l bank Charter to expire rather than “destroying it” as soon as he took office 1800 Election Results 1800 Election Results (16 states in the Union) Thomas Democratic Virginia 73 52.9% -
Download Legal Document
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------------------x JOSE PADILLA, DONNA R. NEWMAN, as Next Friend of Jose Padilla, : Petitioners, : -against- : 02 Civ. 4445 (MBM) GEORGE W. BUSH, DONALD RUMSFELD, : JOHN ASHCROFT and COMMANDER M.A. MARR : Respondents. ------------------------------------------------------------------------x BRIEF SUBMITTED ON BEHALF OF THE AMERICAN CIVIL LIBERTIES UNION, NEW YORK CIVIL LIBERTIES UNION AND CENTER FOR NATIONAL SECURITY STUDIES AS AMICI CURIAE Steven R. Shapiro (SS-9900) Lucas Guttentag (LG-0329) Robin R. Goldfaden Amrit Singh AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 17th Floor New York, New York 10004 (212) 549-2500 Arthur N. Eisenberg (AE-2012) Christopher T. Dunn (CD-3991) Donna Lieberman (DL-1268) NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 17th Floor New York, New York 10004 (212) 344-3005 Kate Martin CENTER FOR NATIONAL SECURITY STUDIES 1120 19th Street, N.W., Suite 800 Washington, DC 20036 (202) 721-5650 Attorneys for Amici Curiae Dated: New York, New York September 26, 2002 2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES. ii INTEREST OF AMICI. 1 INTRODUCTION . 2 ARGUMENT: THE CONSTITUTION DOES NOT PERMIT THE INDEFINITE DETENTION OF AN AMERICAN CITIZEN ARRESTED IN THE UNITED STATES AND HELD IN AN AMERICAN MILITARY JAIL WITHOUT CHARGES, TRIAL, OR ACCESS TO COUNSEL. 4 A. Petitioner’s Confinement Without Charges Or Trial Is Unauthorized By Law. 6 B. Petitioner’s Confinement Without Trial In A Military Brig Cannot Be Justified As A Form Of Preventive Detention. 10 C. Petitioner Can Be Criminally Charged, As Others Have Been In Similar Circumstances . 14 D. -
The Aaron Burr Trial Claudia Bell
University of Richmond UR Scholarship Repository Honors Theses Student Research Winter 1967 The Aaron Burr Trial Claudia Bell Follow this and additional works at: http://scholarship.richmond.edu/honors-theses Recommended Citation Bell, Claudia, "The Aaron Burr Trial" (1967). Honors Theses. Paper 398. This Thesis is brought to you for free and open access by the Student Research at UR Scholarship Repository. It has been accepted for inclusion in Honors Theses by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. UNIVERSITY OF RICHMOND LIBRARIES 1111111111111111111111111111111111111111111111111111111111111111 3 3082 00688 8159 THE AARON BURR TRIAL by Claudia Bell typed by Susie Johnston Honors Paper December 19, 1967 PREFACE The Aaron Burr trial was one of the most interesting cases in American history. Not only was the testimony at the inquiry significant but all events leading to the trial were important. Only those occurrences in Burr 1 s life which led to his tria 1 a re des.crihe.d;-. since perronal situations have no bearing on the case. The trial itself has been clone with as nm.ch detail as possible in order to make the outcome of the inquest understandable. TABLE OF CDNTENTS CHAPTER PAGE I. BACKGROUND • . • • • • • . • • . 1 II. INDICTMElIT B2FORE TP..E GR.Ai'JD JURY • . .13 III. TRIAL BUJRE THE PEI'IT JURY. • . .22 IV. SUhMARY. • . .33 FOOTNOTES. • . .37 BIBLIOGRAPHY • .43 CP.AP'I'ER 1 BAGKGROillm One of the most iT!T_!)Ortant events of 1807 was the .Aaron Burr trial. by the final day of the inquest a dispute between the judicial and exec- utive branches of the federal government had been brought to a head and the consr,ructive definition of treason had been negated. -
THE PRESIDENCY of THOMAS JEFFERSON POLITICAL BELIEFS “The Government Which Governs Least, Governs Best.”
THE PRESIDENCY OF THOMAS JEFFERSON POLITICAL BELIEFS “The government which governs least, governs best.” Strongly favored States Rights as opposed to a strong national government Believed in a strict construction, or strict interpretation, of the US Constitution Wanted to end all taxes of any kind paid by U.S. citizens ACCOMPLISHMENTS PRIOR TO BEING ELECTED PRESIDENT #3 Wrote the first draft of the Declaration of Independence Wrote the Statute of Virginia for Religious Freedom Created the University of Virginia Served as an ambassador to Europe from the United States THE ELECTION OF 1800 Adams would have won re-election, perhaps easily, had Alexander Hamilton not split the Federalist Party ODD BEGINNINGS TRIED TO FIX ELECTION BUT TIED WITH AARON BURR 36 VOTES REQUIRED TO BREAK THE TIE. NEEDED HAMILTON TO COME TO HIS AID BURR BECOMES VICE-PRESIDENT: NO LOVE LOST BETWEEN JEFFERSON AND HIM ANGERED BY HAMILTON’S INVOLVEMENT FIRST PRESIDENT INAUGRATED IN WASHINGTON D.C. WHITE HOUSE STILL UNDER CONSTRUCTION CAPITOL BUILDING: ONLY OTHER BUILDING IN TOWN HELPED DESIGN THE CITY JOHN ADAMS DOES NOT ATTEND FALLOUT FROM THE ELECTION OF 1800 The messed up election pointed out the need for a Constitutional amendment regarding the Presidential election process. The 12th Amendment modified the Constitution so that the President and the Vice-President are elected using separate ballots. AS HIS FIRST TERM BEGINS FEDERALISTS ARE FEARFUL OF ANOTHER REVOLUTION JEFFERSON TURNS THE TABLES “WE ARE ALL REPUBLICANS, WE ARE ALL FEDERALISTS” MAKES SOME SURPRISING CHANGES CUTS MILITARY SPENDING CUTS ARMY FROM 4000 TO 2500 CUTS NAVY FROM 25 TO 7 SHIPS REDUCES NATIONAL DEBT FROM $83 MILLION TO $45 MILLION CUTS INTERNAL TAXES GOVERNMENT INCOME CONSISTED OF TARIFFS AND SALE OF WESTERN LANDS LET THE ALIEN AND SEDITION ACTS EXPIRE. -
The Aaron Burr Conspiracy
Rnnk . A/ /C^ Zbc 'Qknivcxeit^ of Cbicago ;v^ h' 3 I FOUNDED BY JOHN D. ROCKEFELLER THE AARON BURR CONSPIRACY A DISSERTATION SUBMITTED TO THE FACULTIES OF THE GRADUATE SCHOOLS OF ARTS, LITERATURE, AND SCIENCE, IN CANDIDACY FOR THE DEGREE OF DOCTOR OF PHILOSOPHY (DEPARTMENT OF HISTORY) Ifl BY WALTER FLAVIUS McCALEB NEW YORK DoOD, /BbeaD anJ> Gompanis 1903 The Aaron Burr Conspiracy The ^aron Burr Conspiracy A History largely from original and h';herto unused sources By Walter Flavius McCaleb, A.M., Ph.D. Fellow in the Texas State Historical Association Sometime Fellow in History in the University of Chicago t New York DODD, MEAD AND COMPANY 1903 Copyright, 1903, by Dodd, Mead and Company First Edition, published April, 1903 THE CAXTON PRESS NEW YORK. TO HERMANN EDUARD VON HOLTZ Teacher and Friend Preface FOR a century the conspiracy, of Aaron Burr has been a puzzHng theme. Apart from the distin- guished figures that move across its stage, the nature of the enterprise from its very extravagance must always engage the attention of those who care to know something of the United States in its Heroic Age. The conspiracy was of much wider and deeper origin than has been usually supposed, and the conditions which gave rise to it, as well as the events with which it was vitally connected, have received scant treatment from historians. Social and political upheavals are not growths of a night, but are the results of the workings of real and definite causes which are traceable in every case and susceptible of some degree of analysis. -
1 Failed Filibusters: the Kemper Rebellion, the Burr Conspiracy And
Failed Filibusters: The Kemper Rebellion, the Burr Conspiracy and Early American Expansion Francis D. Cogliano In January 1803 the Congressional committee which considered the appropriation for the Louisiana Purchase observed baldly, “it must be seen that the possession of New Orleans and the Floridas will not only be required for the convenience of the United States, but will be demanded by their most imperious necessities.”1 The United States claimed that West Florida, which stretched south of the 31st parallel from the Mississippi River in the west to the Apalachicola River in the east (roughly the modern state of Louisiana east of the Mississippi, and the Gulf coasts of Mississippi and Alabama, and the western portion of the Florida panhandle) was included in the Louisiana Purchase, a claim denied by the Spanish. The American claim was spurious but the intent behind it was clear. The United States desired control of West Florida so that the residents of the Mississippi Territory could have access to the Gulf of Mexico. Since the American Revolution the region had been settled by Spaniards, French creoles and Anglo-American loyalists. Beginning in the 1790s thousands of emigrants from the United States migrated to the territory, attracted by a generous system of Spanish land grants. An 1803 American government report described the population around Baton Rouge as “composed partly of Acadians, a very few French, and great majority of Americans.” During the first decade of the nineteenth century West Florida became increasingly unstable. In addition to lawful migrants, the region attracted lawless adventurers, including deserters from the United States army and navy, many of whom fled from the nearby territories of Louisiana and Mississippi.2 1 Annals of Congress, 7th Cong. -
The Burr Trial As a Defense of Individual Rights Kassian A
30 Traitors and Tyrants: The Burr Trial as a Defense of Individual Rights Kassian A. Kovalcheck On May 22, 1807, the Circuit Court of ·Appeals for the District of Virginia convened at Richmond for the most dramatic trial in the short history of the United States. With Chief Justice of the Supreme Court John Marshall presiding, the court began the tedious project of selecting a grand jury for the con spiracy trial of Aaron Burr, former vice-president of the country he was accused of betraying. While the nature of the charges and the character of the principal defendant attracted and maintained public interest, the questions involved were not only the alleged Burr Conspiracy, but also the conflict between the power of the federal government and the rights of individuals in American society. This trial tested the concept of civil liberties as much as it adjudicated the constitutional issues of treason. When on October 20, 1807, Chief Justice Marshall declared in his concluding state ment that he could not find evidence significant enough to bind the defendant over, Burr left the court a free but ruined man. The Grand Jury, in an earlier statement, had expressed popular sentiment in their verdict: "We of the jury find that Aaron Burr is not proved to be guilty under this indictment."1 Burr could protest 2 that the jury had no right to deface the record of the court," but at the age of forty-n ine his political and public life had ended. 31 Only through the skillful rhetorical strategies of a brilliant defense had he maintained his freedom, if not his honor. -
Rethinking the Development of Legitimate Party Opposition in the United States, 1793–1828
Rethinking the Development of Legitimate Party Opposition in the United States, 1793–1828 JEFFREY S. SELINGER Writing in 1813 to his old friend and political adversary Thomas Jefferson, John Adams vividly described the scene in Philadelphia when the French Revolutionary Wars broke out: “You certainly never felt the Ter- rorism excited by Genêt, in 1793, when ten thousand People in the Streets of Philadelphia, day after day threatened to drag Washington out of his House, and effect a Revolution in the Government, or compell it to declare War in favour of the French Revolution and against England.”1 Adams and Washington had witnessed firsthand this “terrorism” incited by Edmond Genêt, Foreign Minister from France, and it powerfully influenced their appraisal of the risks political parties and other extra-constitutional amalgamations posed to the young Republic. Just a few years after the Genêt Affair, President George Washington issued his often-quoted Farewell Address, in which he admonished the American people to avoid foreign entanglements and be wary of the “baneful effects of the spirit of party.”2 These two recommendations went hand-in-hand: political parties, in Washingtonʼsview,wouldonlycontinuetopolarizeapolitydivided by foreign war.3 The first President was particularly suspicious of the Jeffersonian Republican Party, which he believed had encouraged Francophile partisans to take up arms in support of the French revolutionary struggle against Britain and other powers. With limited resources at its disposal, his administration 1 “Adams to Thomas Jefferson, 30 June 1813” in Lester J. Cappon, ed., The Adams–Jefferson Letters. 2 vols. (Chapel Hill: University of North Carolina Press, 1959), 2: 346–347. -
Few Americans in the 1790S Would Have Predicted That the Subject Of
AMERICAN NAVAL POLICY IN AN AGE OF ATLANTIC WARFARE: A CONSENSUS BROKEN AND REFORGED, 1783-1816 Dissertation Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University By Jeffrey J. Seiken, M.A. * * * * * The Ohio State University 2007 Dissertation Committee: Approved by Professor John Guilmartin, Jr., Advisor Professor Margaret Newell _______________________ Professor Mark Grimsley Advisor History Graduate Program ABSTRACT In the 1780s, there was broad agreement among American revolutionaries like Thomas Jefferson, James Madison, and Alexander Hamilton about the need for a strong national navy. This consensus, however, collapsed as a result of the partisan strife of the 1790s. The Federalist Party embraced the strategic rationale laid out by naval boosters in the previous decade, namely that only a powerful, seagoing battle fleet offered a viable means of defending the nation's vulnerable ports and harbors. Federalists also believed a navy was necessary to protect America's burgeoning trade with overseas markets. Republicans did not dispute the desirability of the Federalist goals, but they disagreed sharply with their political opponents about the wisdom of depending on a navy to achieve these ends. In place of a navy, the Republicans with Jefferson and Madison at the lead championed an altogether different prescription for national security and commercial growth: economic coercion. The Federalists won most of the legislative confrontations of the 1790s. But their very success contributed to the party's decisive defeat in the election of 1800 and the abandonment of their plans to create a strong blue water navy.