Suchergebnisse

The Free and Open Press is an exceptionally satisfying first book. Robert W. T. Martin revitalizes a debate over the status of press rights in eighteenth-century America that had grown tiresome over the past 20 years. Challenging Leonard Levy, his critics, and the ongoing republic/liberalism divide in American political thought, Martin's work offers an interpretation of free speech thought that explains why early Americans sometimes fought for and sometimes fought against press rights. Though Martin claims too much for his thesis at times, all scholars of American political thought and constitutional development should read his book.

The constitutional prohibition on naked land transfers, laws granting to B property that belonged to A, played a far greater role in American constitutional development than is generally realized. The Marshall and Taney Courts heard numerous cases in which government officials were accused of expropriating private property, typically by legislative oversight rather than by deliberate intent. When resolving these cases, antebellum justices relied heavily on "certain great principles of justice" rather than on specific constitutional provisions. Supreme Court majorities on several occasions probably exercised the judicial power to declare federal laws unconstitutional. More frequently, Marshall and Taney Court decisions in naked land transfer cases imposed clear constitutional limits on federal power even if, in a technical sense, those rules did not strike down a particular federal measure. Such cases as Polk's Lessee v. Wendal & AL, United States v. Percheman, and Pollard's Lessee v. Hagan provide an unappreciated link between Calder v. Bull and Lochner v. New York in the development of fundamental rights jurisprudence, and an unappreciated link between Marbury v. Madison and Dred Scott v. Sandford in the establishment of judicial review.

The constitutional prohibition on naked land transfers, laws granting to B property that belonged to A, played a far greater role in American constitutional development than is generally realized. The Marshall and Taney Courts heard numerous cases in which government officials were accused of expropriating private property, typically by legislative oversight rather than by deliberate intent. When resolving these cases, antebellum justices relied heavily on "certain great principles of justice" rather than on specific constitutional provisions. Supreme Court majorities on several occasions probably exercised the judicial power to declare federal laws unconstitutional. More frequently, Marshall and Taney Court decisions in naked land transfer cases imposed clear constitutional limits on federal power even if, in a technical sense, those rules did not strike down a particular federal measure. Such cases as Polk's Lessee v. Wendal & AL, United States v. Percheman, and Pollard's Lessee v. Hagan provide an unappreciated link between Calder v. Bull and Lochner v. New York in the development of fundamental rights jurisprudence, and an unappreciated link between Marbury v. Madison and Dred Scott v. Sandford in the establishment of judicial review.

A new populism is taking root in the strangest soil, American law schools. Tocqueville regarded "the profession of law" as an "aristocratic element," "a sort of privileged body in the scale of intellect." Lawyers, he observed, belonged to "thehighest political class," and routinely developed "some of the tastes and habits of aristocracy." During the 1990s, however, bold challenges to elite rule in the name ofpopular majoritarianism were issued by distinguished professors and chair holders at the most prestigious law schools in the United States. Such leading jurists as Richard Parker, Jack Balkin, Akbil Reed Amar, Sanford Levinson, and Mark Tushnet proudly declared their populist identity, and urged fellow law professors to join the people's crusade.' Deploring the "chronic fetishism ofthe Constitution, constitutional law, and the Supreme Court," these scholars are presently calling for constitutional theory that acknowledges "that 'common' people, ordinary people-not their 'betters,' not somebody else's conception of their supposed 'better selves' are the ones who are entitled to govern our country." This "vision of 'populist constitutionalism,' Levinson notes, "seems to permeate the Yale Law School," and is a presence on the legal faculties at Harvard, Michigan, Texas, and Georgetown.