(Re)introducing Wiley Rutledge

With the rarest of exceptions, when Supreme Court Justices leave the Court, they are soon all but forgotten. ¹ Constitutional law is unrelentingly presentist, so closely intertwined with politics and society that sitting (or recently departed) Justices necessarily speak to the issues more directly than those from another era. If that were not enough, being forgotten is virtually inevitable for those whose careers are short. One of those men was Wiley Rutledge who served from February 1943 until his death at age 55 from a cerebral hemorrhage, six and a half years later. Until John M. Ferren's recently published and marvelously researched Salt of the Earth, Conscience of the Court , ² Rutledge even lacked a true biography. ³ That has been a shame, because the two dominant themes of Ferren's book show that Rutledge is worth knowing: He was a good man and a good judge. Indeed, on what probably was the most fractious Court in American history, ⁴ Rutledge was the sole member both personally liked and intellectually respected by every other member. ⁵     

No Idle Past: Uses of History in the 1830 Indian Removal Debates

I n April and May 1830, heated debates occurred in Congress over whether to remove the Cherokee Indians from certain sections of Georgia and resettle them further west, in what would become Oklahoma. Numerous accounts exist examining the events surrounding removal, which resulted in the notorious "Trail of Tears," and the various motivations of the debate participants. Historians have attributed desire for removal to land hunger, humanitarian concern for the Indians'welfare, a desire to shore up national security, and blatant racism. Some see it as part of a continuing struggle against the perceived Indian enemy, and even as a component of the new rhetorical struggle between the Democrats and Whigs as they sought to define political participation during the Second Party system.¹ No author yet, however, has undertaken an examination of the ways in which the debaters manipulated past events in constructing their arguments either in support of removal or against this policy. This article deals specifically with the uses to which history was put in the 1830 congressional debates on Indian removal.     

Supreme Court Activism in Economic Policy in the Waning Days of the New Deal: Interpreting the Fair Labor Standards Act, 1941–1946

Students of the Supreme Court universally agree that it made a dramatic shift in 1937. First, in West Coast Hotel Company v. Parrish, ¹ it retreated from the unbridled use of the Fourteenth Amendment's Due Process Clause to invalidate state economic regulatory legislation. Then, in National Labor Relations Board v. Jones and Laughlin Steel Corporation , ² the Justices widened the reach of congressional power under the Commerce Clause. This looser reading of the Commerce Clause was solidified in 1941 with United States v. Darby Lumber Company ³ and Wickard v. Filburn. ⁴ So decisive were these cases in dividing what went before from what came afterward that Bernard Schwartz has said, "The 1937 reversal marked the accession of what may be considered the second Hughes Court—so different was its jurisprudence from that of the Hughes Court that had preceded it." ⁵ Whereas the defining jurisprudence of the former had been close supervision of economic policy, the latter refused to second guess the economic wisdom of congressional (and state) regulatory initiatives. Alpheus T. Mason summarized Justice Harlan Fisk Stone's approach, which was indicative of the entire Court of this era, as one that would not say that "no economic legislation would ever violate constitutional restraints, [but that] … in this area the court's role would be strictly confined." ⁶ Confirming this approach, between 1937 and 1957 the Supreme Court struck down only four federal statutes as unconstitutional, none of which were economic in nature. ⁷     

STRUCTURAL DIMENSIONS IN THE GEOGRAPHY OF LOCATIONAL CONFLICTS

L ocational c onflict is a frequent by-product of efforts to change the physical structure of man-made environments. Within the geography discipline, theoretical and empirical interests in the conflict basis of public and private decisions on the use of land were stimulated in the early 1970s by the work of Julian Wolpert and his associates.¹ The resolution of conflicts over the locations of specific activities is seen as an important means of allocating benefits among locations² and has led to considerable variations in the distribution of necessary services and amenities among residents of the city.³ Indeed, irrespective of overt evidences of conflict occurrence, David Harvey has characterized the land-use pattern itself as an important indicator of the socio-political rules which direct urban development.⁴     

Textual Corruption in the Civil Rights Cases

The Civil Rights Cases ¹ do not quite rival Plessy v. Ferguson ² for notoriety as the decision that most clearly confirmed the failure of Reconstruction and the rise of Jim Crow. Yet the Civil Rights Cases did far more than Plessy to limit federal power to address the continuing consequences of slavery. They declared unconstitutional the Civil Rights Act of 1875 insofar as it prohibited discrimination in public accommodations operated by private parties. Congress passed that act under its powers to enforce the Thirteenth and Fourteenth Amendments, but the Court held the act unconstitutional on the ground that private discrimination was neither a badge or incident of slavery under the Thirteenth Amendment nor a manifestation of state action under the Fourteenth. Although the Court's holding under the Thirteenth Amendment was effectively overruled by the Warren Court, ³ its holding under the Fourteenth Amendment continues to be influential, supporting a decision of the Rehnquist Court striking down the Violence Against Women Act. ⁴     

Pioneer Life on the Bay of Quinte: an Evaluation of Genealogical Source Data in the Study of Migration

The movement of people, goods, and ideas into new frontiers is one of the most important and prevalent themes in Canadian historiography.¹ For all that emphasis, however, the literature on the historical demography of the Canadian frontier does little to address the dynamics of frontier migration at the family level or to draw out the contributions of successive generations of pioneer families to the movement of the frontier itself. The difficulty of obtaining data is an obvious explanation, although a few recent studies have shown the usefulness of such sources as church registers, newspapers, residence histories, and naturalization records.² The purpose of the present essay is to draw further attention to the value of this approach by focusing on a specific Ontario example - a volume entitled Pioneer Life on the Bay of Quinte. ³ This book was published in 1904 and it contains data which permit the nineteenth-century migrations of some Bay of Quinte families and their descendants to be traced.     

Property Rights versus "Public Necessity": A Perspective on Emergency Powers and the Supreme Court

Chief Justice Earl Warren once wrote that a free government is continuously "on trial for its life." ¹ And never are the foundations of constitutional liberties more fragile than in periods of emergency, when government invokes extraordinary powers. Invariably, emergency powers involve the immediate curtailment of some rights; at their extreme in martial law, they can warrant an entire suspension of normal civilian governmental functions, as well as full suspension of due-process guarantees. ² Once the constitutional fabric has been stretched to accommodate urgent public necessity in such situations, moreover, restoration to its earlier condition is not automatic or inevitable. On the contrary, as Justice Robert Jackson presciently warned, once the Supreme Court validates as constitutional the abridgement of essential rights during an emergency—and especially when the Court does so in relation to "the vague, undefined and undefinable 'war power'"—any principle that is thus articulated to justify such emergency action "then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." ³     

Writing the First Draft of History: Anthony Lewis as Supreme Court Correspondent

The legendary Washington Bureau Chief and columnist of The New York Times , James Reston, with a push from Felix Frankfurter, decided that the paper of record would have its own correspondent specializing in the Supreme Court. ¹ With his eye for excellent young talent, ² Reston chose Anthony Lewis, already a Pulitzer-Prize winner before his thirtieth birthday, ³ and sent him to Harvard for the 1956–57 academic year as a Nieman Fellow to study law.     

History Declassified: The Perils and Promise of CIA Documents

After a grueling confirmation hearing in late 1991, Robert Gates, the director of central intelligence, convened a CIA Task Force on Openness. It recommended that the agency begin to declassify documents that had previously been withheld from the public.¹ Within the CIA, a Historical Review Board was instructed to "make significant historical information available to the public without damage to the national security interests of the United States."² In the fall of 1992, with great fanfare, the CIA released the first batch of the promised intelligence material–112 documents on the Cuban missile crisis. In the fall of 1993 many of the intelligence estimates on the former Soviet Union were declassified, and thousands of pages of material on the JFK assassination were sent to the National Archives in the wake of public pressure for disclosure generated by Oliver Stone's film JFK.     

Oral Advocacy and the Re-emergence of a Supreme Court Bar

Over the past generation, roughly the period since 1980, there has been a discernible professionalization among the advocates before the Supreme Court, to the extent that one can speak of the emergence of a real Supreme Court bar. Before defending that proposition, it is probably worth considering whether advocacy makes a difference—whether oral argument matters. My view after one year on the opposite side of the bench is the same as that expressed by no less a figure than Justice John Marshall Harlan—the second one—forty-nine years ago, after he completed his year on the Court of Appeals for the Second Circuit. ¹ Justice Harlan lamented what he saw as a growing tendency among the bar "to regard the oral argument as little more than a traditionally tolerated part of the appellate process," a chore "of little importance in the decision of appeals." ² This view, he said, was "greatly mistaken." ³ As Justice Harlan told the bar, "[Y]our oral argument on appeal is perhaps the most effective weapon you have got." ⁴     

The distribution and morphometry of lakes and reservoirs in British Columbia: a provincial inventory

An inventory of provincial lakes and reservoirs has been developed to characterise and assess the distribution and morphometry of standing water bodies in British Columbia. In the province, there are over 241,500 lakes and reservoirs greater than 1,000 m ² in size. These water bodies cover 2.37 percent of the province area and contain an estimated 521 km ³ of water (312 km ³ in natural lakes and 209 km ³ in reservoirs). A hypsometric relation suitable for order-of-magnitude estimates of lake volume from lake area is presented. Based on the distribution and morphometric attributes of lakes, several distinctive limnologic regions were identified, including the northeastern Alberta Plateau (highest proportion of circular lakes), the southwestern Alberta Plateau (lowest lake density/coverage and highest proportion of irregularly shaped lakes) and the Milbanke Strandflat (highest density of lakes). Observed regional and scale-related patterns in lake distribution/morphometry appear to be largely related to geomorphic controls, particularly tectonic and glacial history. Large-scale hydrologic implications of these standing water bodies and potential ecosystem/water resource management applications of the provincial inventory are also discussed.     

The Judicial Bookshelf

Decisions by the Supreme Court that are accorded "landmark" status are chiefly remembered for their holdings and effects. Such cases are also typically linked to a particular era of judicial history, as Marbury v. Madison ¹ was to the Marshall Court and Jefferson's presidency, as Youngstown Sheet & Tube Co. v. Sawyer ² was to the Vinson Court and Truman's presidency, and as Miranda v. Arizona ³ was to the Warren Court and the tumultuous 1960s. But probably only serious students of the Court will recall that Marbury was decided in 1803, Youngstown in 1952, and Miranda in 1966. And fewer still will know, without first consulting a reference, that Marbury came down on February 24, the Steel Seizure Case on June 2, and Miranda on June 13. Scholars typically associate decisions with years, not the day of the month.     

"A More Perfect Union": Ableman v. Booth and the Culmination of Federal Sovereignty

The discourse over federal versus state jurisdiction was ingrained into American politics at the nation's inception. It has been the premise of our most historically significant rivalries—between Thomas Jefferson and Alexander Hamilton, Andrew Jackson and Henry Clay, and Daniel Webster and Robert Hayne. Though this debate remains a contentious topic in contemporary political discourse, the U.S. Supreme Court settled the legal controversy on the eve of America's bloodiest conflagration. Unanimously, the Court ruled that the federal union was of greater importance than the authority of the individual states. The 1859 Ableman v. Booth ¹ decision was wrought from moral controversy, legal precedent, and political necessity, coupled with the full force of law, and has endured as a compelling pronouncement on the need for continuity and stability in uncertain times.     

The military, psychiatry, and "unfit" soldiers, 1939-1942

This article examines the psychiatric screening of U.S. soldiers during the Second World War, established by psychiatrist Harry Stack Sullivan (1892-1949), as a key moment in the public application of clinical psychiatry, as well as a turning point in Sullivan's intellectual and professional career. After a brief look at the ideas and expectations Sullivan brought to the screening system, I discuss a major problem of the screening: the mismatch between the medical concept of disease prevention and the realities of the mass screening as a public policy. As a way to highlight this mismatch, I focus on Sullivan's failure to protect homosexual men from medical and social stigmatization by screening them out of the armed forces. Despite his liberal approach to the issue of homosexuality before the war, which he had created in his clinical practice, Sullivan was unable to persuade the military and the public of gay men's right to serve the nation. The examination of how his sympathetic view of homosexuality became circumscribed reveals not only the gap between clinical insights and public policy, but also how tentative views of homosexuality in public debate among liberal psychiatrists during the decade preceding the war contributed to the failure to make non-homophobic policy in the 1940s. This article shows that the relative conservatism in the politics of sexuality among liberal psychiatrists, as well as the intransigent conservatism as seen in homophobic tradition of the Army, contributed to the discriminatory screening criteria.     

The Graver Tank Litigation in the Supreme Court

The very generality of the patent statutes in American law places a heavy burden on the courts and the patent bar for the development of patent law and policy. It is particularly important that we examine periodically how well the courts have performed that function and how well the bar has supported that effort. This article will focus on an earlier era in patent law—in particular the process surrounding the second Graver Tank decision, in the 1949 Term of the Supreme Court—to see what lessons that experience may hold for present day. ¹     

The benefits of foreign policy bipartisanship revisited: lessons from two Canadian cases

Although foreign policy bipartisanship in Westminster systems is often heralded as a normative good, there is an emerging scholarship which suggests that a bipartisan approach to foreign and defence policy comes with considerable costs. This article seeks to join that debate. It does so by examining two contemporary foreign/defence policy issues in Canadian politics: the mission in Afghanistan from 2001 to 2014 and the efforts to replace the CF-18 Hornet flown by the Royal Canadian Air Force. These two cases do not offer clear conclusions about the normative argument about foreign policy bipartisanship. The embrace of a bipartisan approach to the Afghanistan mission confirms the criticism that bipartisanship can suppress public debate and did indeed distort a consideration of policy options. But the case of the CF-18 replacement suggests that there are significant costs if government and opposition replace a search for bipartisan consensus on key policy issues with an overt politicisation that seeks partisan advantage by ‘playing politics’ with foreign and defence policy issues, concluding that the quality of partisanship is a necessary condition to avoid the dysfunctions and costs of bipartisanship.     

‘The apostle of free trade:’ Adam Smith and the nineteenth-century American trade debates

This paper examines the diversity of uses of Adam Smith’s ideas in nineteenth-century American debates about the tariff. Legislative debates about American trade policy ran almost uninterrupted from the 1820s to the end of the century; as a result, they provide an abundance of examples of the ways in which legislators marshaled economic ideas to shape political discourse and influence policy. Smith’s causal ideas about free trade and its effects were referenced in policymaking, and Smith’s intellectual authority was often invoked as a legitimating device for partisan ideology. These uses, I argue, contributed to the sloganizing of Smith as the ‘apostle of free trade’ and his enduring popularity as a political icon in American politics.     

The Development of the Supreme Court Practice of Calling for the Views of the Solicitor General

"When the Supreme Court invites you, that's the equivalent of a royal command. An invitation from the Supreme Court just can't be rejected." ¹ The guest most frequently invited to the Supreme Court is the Solicitor General. Even before the practice of the Supreme Court calling for the views of the Solicitor General process developed, the Court occasionally invited the Solicitor General to participate as amicus in important cases by submitting a brief and/or participating in oral arguments before the Court. ² As then–Solicitor General Simon E. Sobeloff remarked to then–Attorney General Herbert Brownell in a 1954 letter about the landmark school desegregation cases, "The Supreme Court has expressly extended an invitation to the United States to participate in the reargument. While this by no means compels participation, such an invitation is not to be lightly declined." ³     

‘Meddling with Politics’: The Political Role of Foreign Missions in the Early Nineteenth Century

The proper character of the relationship between missionaries and politics shaped one of the most contentious debates within the first century of the modern missionary movement. While the leadership of the missionary societies repeatedly insisted upon the separation between the work of the gospel and politics, missionaries in the field frequently found it difficult to remove themselves from political controversies. John Philip and James Read served with the London Missionary Society in the Cape Colony for most of the first half of the 19th century. Their persistent defence of the interests of the colonial Khoi made them controversial figures in the debates over the social, political and economic structures of the Cape Colony. Missionaries like Read and Philip, rarely described their activities as ‘political’, and certainly did not conceive of their work as in any way related to the patronage‐ridden political system of the early 19th century. Nonetheless, in their promotion of the ideas of religious and civil equality, and in their effective use of public opinion to shape government and public perception of colonial policy, their actions reflected many of the important changes taking place in contemporary British politics. Dissenting political activity focused on the issues of the defence of religious liberty, the struggle to secure their own civil equality, and the debate over the proper relationship between church and state. These issues also played a crucial role in colonial politics throughout the period. This essay will illustrate the important role of the foreign missionary movement in this process. Examining the work of Philip and Read enables us to identify the ways that issues of domestic politics helped to shape the political debates emerging in Britain's expanding empire.     

FDR, Lewis Douglas, and the, Raw Deal

"Despite my emotions, I could not refuse the responsibility which has been offered; for in times like these, even more so than in times of war, individuals cease to be significant. Only the common welfare is important," explained Lewis Douglas in 1933 as he accepted President-elect Franklin Delano Roosevelt's offer of the position of director of the budget.¹ Douglas came to his post with a strong sense of obligation—he was certain the United States was in a "critical condition," and the only solution to the devastating depression lay in balancing the budget.² Roosevelt seemingly agreed with Douglas. Newspapers reported that the young budget director would "make his mark in the Roosevelt administration" and "be at the heart of things." Journalists argued that Roosevelt's appointment was an "indication that Roosevelt means business in his promise to reduce government costs."³