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Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98

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Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98 University of Kentucky UKnowledge Law Faculty Scholarly Articles Law Faculty Publications 7-2013 Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98 Brian L. Frye University of Kentucky College of Law, [email protected] Josh Blackman South Texas College of Law Michael McCloskey Follow this and additional works at: https://uknowledge.uky.edu/law_facpub Part of the Legal History Commons Right click to open a feedback form in a new tab to let us know how this document benefits ou.y Recommended Citation Brian L. Frye, Josh Blackman & Michael McCloskey, Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98, 81 Geo. Wash. L. Rev. Arguendo 12 (2013). This Article is brought to you for free and open access by the Law Faculty Publications at UKnowledge. It has been accepted for inclusion in Law Faculty Scholarly Articles by an authorized administrator of UKnowledge. For more information, please contact [email protected]. Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98 Notes/Citation Information The George Washington Law Review Arguendo, Vol. 81 (July 2013), 12-349 This article is available at UKnowledge: https://uknowledge.uky.edu/law_facpub/314 Justice John Marshall Harlan: Lectures on Constitutional Law, 1897–98 Edited by Brian L. Frye,* Josh Blackman** & Michael McCloskey*** TABLE OF CONTENTS LECTURE 1: OCTOBER 14, 1897 (The English System of Government) ...... 14 LECTURE 2: OCTOBER 21, 1897 (English Constitutional History) ............... 22 LECTURE 3: OCTOBER 23, 1897 (The Preamble) ......................................... 31 LECTURE 4: OCTOBER 30, 1897 (The Vesting Clauses and Constitutional Supremacy) ............................................................... 43 LECTURE 5: NOVEMBER 6, 1897 (Article I, §§ 1 & 2) ................................. 54 LECTURE 6: NOVEMBER 13, 1897 (Article I, §§ 3 & 4) ................................ 67 LECTURE 7: NOVEMBER 20, 1897 (Article I, §§ 4, 5, & 6) ........................... 78 LECTURE 8: DECEMBER 4, 1897 (Article I, §§ 5, 7, & 8) ............................. 89 LECTURE 9: DECEMBER 11, 1897 (Article I, § 8) ....................................... 102 LECTURE 10: DECEMBER 18, 1897 (THE Commerce CLAUSE) .................. 115 LECTURE 11: JANUARY 8, 1898 (The Commerce Clause continued; Naturalization) ................................................................................ 126 LECTURE 12: JANUARY 15, 1898 (Article I, § 8, cls. 4–14) ........................ 135 LECTURE 13: JANUARY 22, 1898 (Article I, § 8, cls. 15–18) ..................... 148 LECTURE 14: JANUARY 29, 1898 (Article I, § 9, cls. 1 & 2) ...................... 163 LECTURE 15: FEBRUARY 5, 1898 (Article I, § 9, cls. 3–8; Article I, § 10) ................................................................................................ 175 LECTURE 16: FEBRUARY 12, 1898 (Separation of Powers, Checks & Balances, and Article II) ................................................................. 187 LECTURE 17: FEBRUARY 19, 1898 (Article II, §§ 1 & 2; 12th Amendment) ................................................................................... 201 LECTURE 18: FEBRUARY 26, 1898 (Article II, § 2) .................................... 215 * Assistant Professor of Law, University of Kentucky College of Law; J.D., New York University School of Law, 2005; M.F.A., San Francisco Art Institute, 1997; B.A., University of California, Berkeley, 1995. Professor Frye thanks the Institute for Humane Studies, which partially funded his research on this project. Special thanks to Zach Cato and C.J. Ryan for research assistance. ** Assistant Professor, South Texas College of Law; President, The Harlan Institute. *** J.D., Catholic University of America Columbus School of Law, 2012. The editors thank Scott Campbell, Jack Chin, Ross Davies, Davison Douglas, and Richard Pascal, as well as research assistants Zach Cato, C.J. Ryan, Cyavash Ahmadi, William Reinken, and Erin Ross. The editors dedicate this transcript to George Johannes, whose diligent note taking in Justice Harlan’s class secured these lectures to “ourselves and our Posterity.” July 2013 Vol. 81 Arguendo 12 2013] JUSTICE HARLAN: LECTURES ON CONSTITUTIONAL LAW 13 LECTURE 19: MARCH 5, 1898 (Article II, §§ 3 & 4; Article III, § 1) ......... 229 LECTURE 20: MARCH 12, 1898 (Article III, §§ 2 & 3; 6th Amendment Right to a Jury Trial) ....................................................................... 244 LECTURE 21: MARCH 19, 1898 (Article III, § 3; Magna Charta; Article IV, § 1) ............................................................................................ 257 LECTURE 22: MARCH 26, 1898 (Article IV, § 2) ....................................... 271 LECTURE 23: APRIL 2, 1898 (Article IV, §§ 3 & 4; Article V; Article VI) ................................................................................................... 285 LECTURE 24: APRIL 16, 1898 (Amendments 1–5) ..................................... 300 LECTURE 25: APRIL 23, 1898 (The Establishment Clause, Double Jeopardy, Self-Incrimination, Speedy and Public Trial) ................. 314 LECTURE 26: APRIL 30, 1898 (Amendments 6–11) ................................... 327 LECTURE 27: MAY 7, 1898 (Amendments 13 & 14) .................................. 341 14 THE GEORGE WASHINGTON LAW REVIEW ARGUENDO [Vol 81 LECTURE 1: OCTOBER 14, 1897 One thing I wish to say to you before beginning with the examination and explanation of the Constitution, is that I must assume that each of you has some time or other in your life read the history of England and the history of the United States. If you have done neither, the sooner you do so the better. This I must assume in order to complete in the short time of space allotted to me, that you have at least a general knowledge of your country, as well as of the country from which our institutions and laws have been derived. You well understand that there is little or no scope for originality in anything that I can present to you as to our Constitution. The whole thing seems to have been fully covered by treatises and judicial opinions. These later must be our guides in ascertaining what that instrument means. The decisions here alluded to are of course principally those of the Supreme Court of the United States. No other judicial tribunal can speak with the same authority as it can. Now, do not understand me to say that every possible question has been determined. From the very nature of things, as our civilization advances and broadens, new phases of questions supposed to have been settled will arise and often present difficulties of a very serious character. All that I mean to say is that most every position relating to the powers of the federal government have been defined in their scope, so that all that remains to be done is to apply the rules to new phases of old questions. The man who knows nothing of the form of government under which he lives does not deserve to enjoy its blessings and privileges. He is derelict in his duty as a citizen, and of all other persons the lawyer is least excusable. I have often been astounded to meet with lawyers who have actually never read the Constitution of the United States, although it can be read within the time that is wasted at a street corner some afternoon discussing the last game of baseball or the last prize fight. They may have examined particular clauses, but have never read the entire instrument so as to comprehend in a general way the system of government ordained by it. They have a vague, loose idea of what may and what may not be done under the Constitution, and they have not a knowledge which comes from an actual examination or a serious thought. Good lawyers have been heard to accord powers to the general government which everyone knows that it does not possess, and deny powers that it has and must have if it is to exist at all. Now, I beg you that that this may not be said of any member of this 2013] JUSTICE HARLAN: LECTURES ON CONSTITUTIONAL LAW 15 law class that he allow this week to pass without reading the Constitution. Some knowledge of the principles underlying the government under which we live ought to be possessed by every person who owes duties to that government, or upon whom its laws operate, or who depends upon it for protection of his life, liberty, and property. Freedom and free institutions cannot long be entertained by a people who do not understand the nature of the government under which they live. It is a peculiar fact that many of our graduates of universities are better informed about the history and laws of ancient nations than they are of the government under which they live. Gentlemen go to Europe carrying with them diplomas of the highest excellence in literature and ancient history and of the classics who cannot explain to a foreigner of some education any of the principles upon which our system of republican government rests. If they are asked why Congress does not pass a general divorce law operating throughout the entire United States, or fix a uniform punishment for the crime of murder, these gentlemen of such high attainment could not tell, if their lives depended on it, why Congress had no power to enact such legislation. Now, it is essential to a clear understanding of our Constitution to know something of the circumstances under which those who framed it were placed. There are words in our Constitution which are susceptible of different constructions, but their meanings are ascertained by knowing the circumstances which
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