Suchergebnisse

In 1818, the United State Supreme Court ended the year's term without rendering a decision in the case that would become the foundation for the protection of corporate property rights from state intervention: Trustees of Dartmouth College v. Woodward.1 From the inception of the controversy to the reading of Justice Marshall's opinion on the opening day of the Supreme Court's term in 1819, Justice Joseph Story played a critical role in molding the Dartmouth College case into a solid foundation for the "protection to private property against the authority of the government--a principle which became the cornerstone of the American doctrine of constitutional government."2 Justice Story not only helped create the legal strategy of Dartmouth College's chief counsel, Daniel Webster, but his eloquent concurring opinion repaired the shortfalls of Chief Justice Marshall's opinion.

It is widely assumed that the Ninth Amendment languished in constitutional obscurity until it was resurrected in Griswold v. Connecticut by Justice Arthur Goldberg. In fact, the Ninth Amendment played a significant role in some of the most important constitutional disputes in our nation's history, including the scope of exclusive versus concurrent federal power, the authority of the federal government to regulate slavery, the constitutionality of the New Deal, and the legitimacy and scope of incorporation of the Bill of Rights into the Fourteenth Amendment. The second of two articles addressing the Lost History of the Ninth Amendment, The Lost Jurisprudence takes a comprehensive look at the Ninth Amendment jurisprudence which flourished from the early nineteenth to the mid-twentieth century. Long assumed never to have received significant attention from the Supreme Court, in fact the first discussion and application of the Ninth Amendment was by none other than Justice Joseph Story himself. In a passage unnoticed since the nineteenth century, Justice Story interpreted and applied the Ninth Amendment precisely the way James Madison and the state ratifying conventions intended; as a rule of construction preserving the retained right of local self-government. Ignored by the framers of the Fourteenth Amendment, the Ninth Amendment and its attendant rule of construction were deployed by courts throughout the nineteenth century to limit the interpretation of federal powers and rights. Ubiquitously paired with the Tenth Amendment, the Ninth suffered the same fate as the Tenth at the time of the New Deal, when both were rendered mere truisms in the face of expansive constructions of federal power. By 1965, the Ninth was assumed to exist in a doctrinal and historical vacuum, an assumption that no one has questioned until now.

Advocates' claims about restorative justice contain four myths: (1) restorative justice is the opposite of retributive justice; (2) restorative justice uses indigenous justice practices and was the dominant form of pre-modern justice; (3) restorative justice is a 'care' (or feminine) response to crime in comparison to a 'justice' (or masculine) response; and (4) restorative justice can be expected to produce major changes in people. Drawing from research on conferencing in Australia and New Zealand, I show that the real story of restorative justice differs greatly from advocates' mythical true story. Despite what advocates say, there are connections between retribution and restoration (or reparation), restorative justice should not be considered a pre-modern and feminine justice, strong stories of repair and goodwill are uncommon, and the raw material for restorativeness between victims and offenders may be in short supply. Following Engel, myth refers to a true story; its truth deals with 'origins, with birth, with beginnings... with how something began to be' (1993: 791-2, emphasis in original). Origin stories, in turn, 'encode a set of oppositions' (1993: 822) such that when telling a true story, speakers transcend adversity. By comparing advocates' true story of restorative justice with the real story, I offer a critical and sympathetic reading of advocates' efforts to move the idea forward. I end by reflecting on whether the political future of restorative justice is better secured by telling the mythical true story or the real story.

2/3/1812: Justice Joseph Story takes oath.

The large role which literary allusion plays in The Brothers Karamazov has often been noted by critics. Ralph Matlaw calls the novel "one of the most 'literary' books ever written." Victor Terras more recently has observed that "more than any other novel of Dostoevsky, The Brothers Karamazov is a work 'written in the margins of other books.'" If scholars took the time to investigate in detail every literary reference in this novel, no doubt the size of current Dostoevskii bibliographies could be doubled within the year, though without contributing substantially to our knowledge of the work. Why then should a lone reference to the biblical story of Joseph merit intensive consideration? The answer concerns both the context and the content of the reference, which is found in the subchapter entitled "Of the Holy Scriptures in the life of Father Zosima." The bible stories mentioned in this section might be considered as a body in order to illustrate what role the Scriptures have played in the elder's life, and what role they may play in the regeneration of all men. Within this subchapter no fewer than a dozen biblical stories and books are singled out, yet only two are discussed at any length: the Book of Job and the story of Joseph. In the latter case not only is the story paraphrased and quoted (or, better, misquoted) but it is also given a particular and untraditional interpretation by Zosima.