Does the Law and the Constitution of the Family Have to Change?

The law and constitution of the family has been targeted for transformation in recent years, leading most notably to the Supreme Court's decision in Obergefell v. Hodges, mandating same-sex marriage as a matter of constitutional law. In this essay I undertake a thought experiment, asking how advocates of traditional marriage ought to want the law of marriage to change in light of this development. I begin by reviewing the argument for legal change sketched by Aquinas and then applying it to developments concerning marriage in modern America. Next I sketch the natural-law argument on behalf of traditional marriage. Finally, I turn to the case of Michael H. v. Gerald D., in which the Supreme Court upheld a statutory reiteration of the common-law presumption that the husband of the mother is the father of her child, against a challenge from the biological father, suggesting that this case, long admired by conservatives, needs to be reconsidered—and that the dissent in the recent Indian Adoption Case recognizing a constitutional right of biological parents might prove useful to the restoration of marriage law.     

Free and Happy Bonds: Loving v. Virginia's Nineteenth-Century Precedent on Marriage and the Pursuit of Happiness

Loving v. Virginia declares that marriage contributes to the pursuit of happiness. It supports this claim by citing 19^th century precedent, precedent which itself drew upon a longstanding view of marriage and happiness's pursuit. This article examines that view in state and federal opinions from the decades surrounding 14^th Amendment ratification. The courts saw marriage as fulfilling the human need for community, thereby aiding in the private happiness of those marrying and the public happiness of the political society. Marriage supported private happiness by forming a bond that provided for physical, material, and emotional needs. Courts sought to aid these goals while also protecting spouses' rights. Marriage supported public happiness through creating and educating future citizens as well as cultivating virtuous habits among those married—goals which the courts also sought to protect. The article concludes by discussing the continuity and discontinuity between these 19^th century cases, Loving, and Obergefell.     

Attorney General Kennedy versus Solicitor General Cox: The Formulation of the Federal Government's Position in the Reapportionment Cases

In a recent article in this journal, “May It Please the Court? The Solicitor General's Not-So-‘Special' Relationship: Archibald Cox and the 1963–1964 Reapportionment Cases,” ¹ Helen J. Knowles shows how the Supreme Court went beyond the arguments of the Solicitor General, Archibald Cox, in establishing “one man, one vote” as the governing principle for the election of state legislators. In making this demonstration, Ms. Knowles also shows how Attorney General Robert Kennedy prevailed on Cox to support the plaintiffs in six reapportionment cases despite Cox's serious doubts about this position. ² In doing so, Ms. Knowles was more than generous in describing my small part in this story.     

The Life and Career of Justice Robert H. Jackson

Robert H. Jackson was one of the most influential Justices of the Supreme Court in the twentieth century. His tenure on the Court ran from 1941 to his death in 1954, and during that time he participated in landmark cases involving the programs implemented by Roosevelt's New Deal to rescue the country from Depression, having previously served the administration in other roles. He authored a memorable dissent in United States v. Korematsu, the notorious Japanese internment case. ¹ He is also remembered for the role he served as the chief American prosecutor before the International Military Tribunal that tried Nazi leaders after World War II. In some ways, Jackson's fierce independence and the lessons he learned growing up in a small town were the ideal training for the demands and competitiveness of the nation's highest Court. That Jackson's words and beliefs still have relevance in the twenty‐first century is evidenced by the fact that both recent Supreme Court appointees quoted him during the confirmation hearings. ² In this essay, I will examine how Jackson's life experiences influenced his legal career and informed his jurisprudence, and to what extent Jackson lived up to his own vision of the role of a Supreme Court Justice.     

The Arlington Cemetery Case: A Court and a Nation Divided

Seventeen years after the Confederate general Robert E. Lee surrendered at Appomattox, his eldest son won a sweeping victory over the federal government in the United States Supreme Court. On December 4, 1882, the Supreme Court upheld a federal trial court's ruling that the United States government's claim of title to Arlington National Cemetery rested on an invalid tax sale. The Justices thus affirmed the lower court's verdict that George Washington Custis Lee (“Custis Lee”), eldest son of Mary and Robert E. Lee, held legal title to Arlington. The Supreme Court also upheld the lower court's decision to permit Custis Lee to bring suit against the government officers who occupied Arlington. On the latter point, the Justices split 5 to 4, with a majority ruling for Custis Lee. The outcome of United States v. Lee, commonly known as the Arlington case, made it clear that the Lee family, and not the United States government, owned Arlington.     

Justice Jackson and the Second Flag‐Salute Case: Reason and Passion in Opinion‐Writing

In 1943, the Supreme Court handed down West Virginia State Board of Education v. Barnette. ¹ With Justice Robert H. Jackson writing for the six‐Justice majority, the Court upheld the First Amendment right of Jehovah's Witnesses schoolchildren to refuse to salute the flag or recite the Pledge of Allegiance, state‐imposed obligations that the children and their parents contended were acts of idolatry that violated biblical commands. Judge Richard A. Posner has said that Justice Jackson's effort “may be the most eloquent majority opinion in the history of the Supreme Court.” ²     

The Time to Kill a Snake: Gitlow v. New York and the Bad‐Tendency Doctrine

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Cooper v. Aaron (1958): A Hidden Story of Unanimity and Division

Contemporary and later commentators emphasized the Supreme Court's forceful affirmation of its own authority in Cooper v. Aaron (1958). The case was the Court's first significant test of states' rights opposition denying that Brown v. Board of Education (1954) (Brown I) and the Brown II (1955) decree permitting gradual implementation were legitimate constitutional law. Indeed, following the Court's announcement of Cooper v. Aaron in September 1958, Arkansas Governor Orval Faubus and his followers closed the very same Little Rock schools the Supreme Court had ordered desegregated. Black students' rights did not prevail until summer 1959. In Arkansas and elsewhere, defiance initially triumphed over the Supreme Court's self‐assertive power. ¹     

Marriage and the Law: Politics and Theology in Measure for Measure

Abstract

In Measure for Measure, Shakespeare portrays a clearly political problem: a city whose citizens are so unable to govern themselves that only the most severe legal punishments appear capable of restoring civic order. Yet the play's conclusion, for all its dramatic fireworks, does not obviously resolve this problem. All that happens, it appears, is that everyone gets married. Understanding marriage's political significance, therefore, is key to unraveling the play's political teaching. By carefully framing marriage within Pauline language of sin and grace—and in particular by using the image of death and rebirth through baptism—Shakespeare offers a theological as well as a political image of a kind of self-government capable of easing the city's legal dilemmas and reconciling justice with mercy.     

Democracy and political economy: Tocqueville's thoughts on J.-B. Say and T.R. Malthus

This essay examines the intellectual origins of Tocqueville's thoughts on political economy. It argues that Tocqueville believed political economy was crucial to what he called the ‘new science of politics’, and it explores his first forays into the discipline by examining his studies of J.-B. Say and T.R. Malthus. The essay shows how Tocqueville was initially attracted to Say's approach as it provided him with a rigorous analytical framework with which to examine American democracy. Though he incorporated important aspects of Say's work in Democracy in America (1835), he was troubled by elements of it. He was unable to articulate clearly these doubts until he began studying Malthus. What he learned from Malthus caused him to move away from the more formalised approach to political economy advocated by Say and his disciples and move towards an approach advocated by Christian political economists, such as Alban Villeneuve-Bargemont. This shift would have important consequences for the composition of Democracy in America (1840).     

Swift and Erie: The Trials of an Ephemeral Landmark Case

Like jazz improvisation, the meaning of Swift v. Tyson was elusive. ¹ Justice Joseph Story's 1842 opinion concerning an important commercial‐law issue arose from a jury trial. ² When the creditor plaintiff appealed, counsel for the winning debtor raised as a defense Section 34 of the 1789 Judiciary Act. The federal circuit court disagreed about the standing of commercial law under Section 34. Although profound conflicts otherwise divided nationalist and states'‐rights proponents, the Supreme Court endorsed Story's commercial‐law opinion unanimously. ³ New members of the Court and the increasing number of federal lower‐court judges steadily transformed the Swift doctrine; after the Civil War it agitated the federal judiciary, elite lawyers, and Congress. ⁴ Asserting contrary tenets of American constitutionalism, the Supreme Court overturned the ninety‐six‐year‐old precedent in Erie Railroad v. Tompkins (1938). ⁵ The Swift doctrine's resonance with changing times was forgotten. The Court and the legal profession established, transformed, and abandoned the doctrine though an adversarial process and judicial instrumentalism. Although the policy of each decision reflected its time, Story's opinion was more consistent with the federalism of the early Constitution than was Erie. ⁶     

Bibliography of articles and books dealing with seventeenth-century religious thought, 1975–1980

This essay examines Tocqueville's conception of the “social” against the background of debates over the relationship between the social and the political in France from the Revolution to mid-century. It focuses on three groups: those associated with the social philosophy of industrialisme, those concerned with the evils of pauperism from the standpoint of Catholic social reform, and those allied with the new Doctrinaire view of society and politics. It argues that Tocqueville consistently resisted the primacy of the “social” as articulated by these thinkers, even in the seductive form offered by François Guizot, whose influence on Tocqueville is examined in light of recent debates over this issue.     

The Four Good Dissenters in Pollock

The overall theme of this lecture series is great dissenters. This contribution to the series is on the dissenters in the 1895 case of Pollock v. Farmers' Trust & Loan Co. In Pollock, the Supreme Court decided, by a vote of 5–4, that the 1894 federal income tax was unconstitutional. The four dissenters—Justice Henry Brown of Michigan, Justice John Marshall Harlan of Kentucky, Justice Howell Jackson of Tennessee, and future Chief Justice Edward D. White—would have upheld the tax.     

Mill and Tocqueville: a friendship bruised

Having first met in 1835, John Stuart Mill and Alexis de Tocqueville began ‘an extremely interesting and mutually laudatory correspondence'; but their splendid friendship did not last. A popular thesis focuses on letters exchanged in 1840 to 1842 that reflect conflicting views on the Eastern Question and argues that Mill initiated the ‘strange interruption’. Given Mill's commitment to the ‘agreement of conviction and feeling on the few cardinal points of human opinion’ as a prerequisite of genuine friendship, such interpretation sounds plausible. However, circumstantial evidence, most notably Mill's willingness to have a frank discussion with Tocqueville on pending issues, contradicts the assertion that Mill was enraged by Tocqueville's 1841 letter. This essay suggests focusing attention on two additional cardinal differences between them—their contrasting views of François Guizot and confrontation vis-à-vis benevolent imperialism. Moreover, personal matters such as Harriet Taylor's dislike of Tocqueville and Mill's departure from the London and Westminster Review are also believed to have largely led to Mill discontinuing correspondence with Tocqueville.     

A New Standard of Review: Craig v. Boren and Brennan's “Heightened Scrutiny” Test in Historical Perspective

“To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” ¹ With this one statement, Justice William Brennan, Jr., writing for the majority in the 1976 Supreme Court case Craig v. Boren, ² both reversed the decision of the district court below and—more importantly—redefined the legal standard for equal protection in gender-discrimination cases. Brennan's statement encapsulated decades' worth of development and decisions under the Equal Protection Clause of the Fourteenth Amendment, which bars states from denying “to any person within [their] jurisdiction the equal protection of the laws,” ³ by creating what is now referred to as the “heightened scrutiny” ⁴ standard for judging equal protection legislation. Yet Brennan's creation of a new standard is quite striking, even when looked at in hindsight. How was Brennan able to create this standard of review, and where did it come from? Was this new step taken by the Justices under equal protection adjudication a mistake, or a necessary reality of the period? Through a close analysis of both the history of the Equal Protection Clause in its relation to gender legislation and the history of feminism during the 1960s and 1970s, the inevitability of Brennan's decision becomes clear. In fact, the creation of the heightened scrutiny standard was an inevitable outgrowth of two separate, yet fundamentally related progressions: the steps taken in the Court in its review of gender-discrimination cases in the years prior to Craig v. Boren; and the changes in society's relation to the feminist movement in the pre-1973 and post-1973 periods.     

Perspectives: On Political Science: Annual Index Volume 30, 2001

Abstract

Although Tocqueville called Jefferson “the greatest democrat, who has yet issued from within the American democracy,” a close reading of their works suggests that Tocqueville’s assessment of Jefferson was far more mixed than first appears. In the first section, I take up Jefferson’s understanding of the principles of the Declaration of Independence and offer arguments for why Tocqueville chose not to cite the Declaration in Democracy in America. Using those writings of Jefferson available to Tocqueville in French translation, I show that Tocqueville saw in Jefferson’s own understanding of those principles certain dangerous tendencies of the democratic mind. Yet there is one principle on which both agree: the natural right to political liberty and association. Section two compares their contrasting views of republican constitutionalism, taking into account Jefferson’s evolving views of republicanism as well as Tocqueville’s analysis of both the American constitution and his contributions to the committee that framed the French constitution in 1848. The concluding section analyzes their differing assessments of philosophical materialism and religion in preserving the political liberty both sought.     

Public Attitudes toward Official Bilingualism in Canada: Making Sense of Regional and Subregional Variation

ABSTRACT

Pierre Trudeau’s vision of Canada’s cultural policy was situated within a bilingual framework. Canada, so conceived, has “no official culture” and two official languages. Nearly 50 years later, debates regarding the effects and broader significance of this policy combination persist as illustrated by the recent debate about Supreme Court judges. Yet, Canadians’ attitudes about bilingualism have received relatively little scholarly attention. This paper probes the structure and recent evolution of public attitudes toward the general idea of official bilingualism using the Survey on Official Languages (2003) and the Canadian Election Studies (1997–2011). It goes on to investigate regional differences in public support for bilingual Supreme Court judges using a large-scale survey conducted by Vox Pop Labs in 2015 (n = 291, 577). The combination of these data sources offers new insights into the contextual and individual-level determinants of regional differences in public attitudes toward bilingualism policy in Canada.     

The “Realism” of Augustine's “Political Realism”: Augustine and Machiavelli

Abstract

Arendt and Tocqueville both celebrate a participatory notion of political freedom, but they have a fundamental disagreement about the role that political education should play in fostering an active citizenry. I contrast Tocqueville's “educative” conception of politics with Arendt's “performative” conception, and I explore an important but little-noted difference between the two theorists: whereas Tocqueville argues that it is the task of statesmen “to educate democracy,” Arendt warns that those who seek to “educate” adults are inappropriately aspiring to be their “guardians.” I argue that although Arendt's warnings about the dangers of intertwining politics and education are at times salutary, Tocqueville is ultimately correct that education must be a key task of democratic leadership, and he is right to suggest that politics can itself be educative in crucial ways.     

The Case of William Dick: Ransom County, North Dakota

In May 2009, a decision of the United States Supreme Court with North Dakota roots turned fifty years old. A case unique in the annals of the law, Dick v. New York Life Insurance Company ¹ still fascinates lawyers today. Factually, the case presented a strange question: could an experienced hunter accidentally shoot himself not once, but twice? Some of North Dakota's finest lawyers, including Philip Vogel, Donald Holand, and Norman Tenneson, aimed to get to the bottom of that matter. The judges were equally impressive: Judge Ronald Davies of the federal district court; Judge John Sanborn of the U.S. Court of Appeals for the Eighth Circuit; and Chief Justice Earl Warren and Justice Felix Frankfurter. Finally, as a matter of Supreme Court jurisprudence, Dick may have been the last time the High Court granted a petition for certiorari in a case that turned almost exclusively on questions of fact. In honor of its golden anniversary, this article recounts the captivating story of Dick v. New York Life.     

Mapp v. Ohio Revisited: A Law Clerk's Diary

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