Due process of law

a brief history

Author: John V. Orth

Publisher: Univ Pr of Kansas

ISBN: N.A

Category: Law

Page: 116

View: 7895

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Many rights that Americans cherish today go unmentioned in the U.S. Constitution. Where do these freedoms come from? John V. Orth answers that question in this unique and gem-like history of due process. No person's life, liberty, or property may be taken without "due process of law." What exactly that means has been one of the most frequently asked questions in American constitutional history. Today, the answer is usually given in two parts: what procedures the government must follow and--in exceptional cases--what the government cannot do even if it follows the proper procedures. The procedural aspect of this answer has been far less controversial than "substantive due process, " which at one time limited government regulation of business and today forbids the states from outlawing abortions. "Due process of law, " as a phrase and as a concept, was already old at the time it was adopted by American constitution-writers, both state and federal. Mindful of the English background and of constitutional developments in the several states, Orth in a succinct and readable narrative traces the history of due process, from its origins in medieval England to its applications in the latest cases. Departing from the usual approach to American constitutional law, Orth places the history of due process in the larger context of the common law. To a degree not always appreciated today, constitutional law advances in the same case-by-case manner as other legal rules. In that light, Orth concentrates on the general maxims or paradigms that guided the judges in their decisions of specific cases. Uncovering the links between one case and another, Orth describes how a commitment to fair procedures made wayfor an emphasis on the protection of property rights, which in turn led to a heightened sensitivity to individual rights in general. This unconventional history of the concept of due process heightens the reader's understa

Substantive due process of law

a dichotomy of sense and nonsense

Author: Frank R. Strong

Publisher: Carolina Academic Pr

ISBN: N.A

Category: Law

Page: 306

View: 8783

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The author presents the view that substantive due process, historically, has had very specific meanings. He also discusses the eroding of these original concepts by the Supreme Court.

The Due Process of Law

Author: Alfred Denning

Publisher: OUP Oxford

ISBN: 0191018554

Category: Law

Page: 282

View: 7464

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Two central themes run through The Due Process of Law. The first is the workings of the various "measures authorised by the law so as to keep the streams of justice pure" - that is to say, contempt of court, judicial inquiries, and powers of arrest and search. The second is the recent development of family law, focusing particularly on Lord Denning's contribution to the law of husband and wife. These broad themes are elaborated through a discussion of Lord Denning's own judgments and opinions on a wide range of topics.

Yale Law Journal: Volume 121, Number 7 - May 2012

Author: Yale Law Journal

Publisher: Quid Pro Books

ISBN: 1610279476

Category: Law

Page: 460

View: 4253

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This issue of The Yale Law Journal (the 7th issue of Volume 121, academic year 2011-2012) features articles and essays by several notable scholars. Principal contributors include Richard Re and Christopher Re, Nathan Chapman and Michael McConnell, Bruce Cain, Christopher Elmendorf and David Schleicher, and Joseph Fishkin. The May issue's complete Contents are: "Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments," by Richard M. Re and Christopher M. Re "Due Process as Separation of Powers," by Nathan S. Chapman and Michael W. McConnell "Redistricting Commissions: A Better Political Buffer?," by Bruce E. Cain "Districting for a Low-Information Electorate," by Christopher S. Elmendorf and David Schleicher "Weightless Votes," by Joseph Fishkin Note, "Recognizing Character: A New Perspective on Character Evidence," by Barrett J. Anderson Note, "Cross-National Patterns in FCPA Enforcement," by Nicholas M. McLean Comment, "One Person, No Vote: Staggered Elections, Redistricting, and Disenfranchisement," by Margaret B. Weston

Impartial Justice

The Real Supreme Court Cases that Define the Constitutional Right to a Neutral and Detached Decisionmaker

Author: Eric T. Kasper

Publisher: Lexington Books

ISBN: 0739177222

Category: Law

Page: 232

View: 2900

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This book examines the right to a neutral and detached decisionmaker as interpreted by the U.S. Supreme Court. This right resides in the Constitution’s Fifth Amendment and Fourteenth Amendment guarantees to procedural due process and in the Sixth Amendment’s promise of an impartial jury. Supreme Court cases on these topics are the vehicles to understand how these constitutional rights have come alive. First, the book surveys the right to an impartial jury in criminal cases by telling the stories of defendants whose convictions were overturned after they were the victims of prejudicial pretrial publicity, mob justice, and discriminatory jury selection. Next, the book articulates how our modern notion of judicial impartiality was forged by the Court striking down cases where judges were bribed, where they had other direct financial stakes in the outcome of the case, and where a judge decided the case of a major campaign supporter. Finally, the book traces the development of the right to a neutral decisionmaker in quasi-judicial, non-court settings, including cases involving parole revocation, medical license review, mental health commitments, prison discipline, and enemy combatants. Each chapter begins with the typically shocking facts of these cases being retold, and each chapter ends with a critical examination of the Supreme Court’s ultimate decisions in these cases.

Liberty and Union

A Constitutional History of the United States

Author: Edgar J. McManus,Tara Helfman

Publisher: Routledge

ISBN: 1136756671

Category: Political Science

Page: 496

View: 2791

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This, the first of two volumes of Liberty and Union, is a comprehensive constitutional history of the United States from the Anglo-American origins of the Constitution through the colonial and antebellum periods, to the Civil War and the consequent restructuring of the nation. Written in a clear and engaging narrative style, it successfully unites thorough chronological coverage with a thematic approach, offering critical analysis of core constitutional history topics, set in the political, social, and economic context that made them constitutional issues in the first place. Combining a thoughtful and balanced narrative with an authoritative stance on key issues, the authors explain the past in the light of the past, without imposing upon it the standards of later generations. Authored by two experienced professors of History and Law this textbook has been thoughtfully constructed to offer an accessible alternative to dense scholarly works – avoiding unnecessary technical jargon, defining legal terms and historical personalities where appropriate, and making explicit connections between constitutional themes and historical events. For students in an undergraduate or postgraduate constitutional history course, or anyone with a general interest in constitutional developments, this book will be essential reading. Useful features include: Full glossary of legal terminology Recommended reading A table of cases Extensive supporting artwork Companion website Useful documents provided: Declaration of Independence Articles of Confederation Constitution of the United States of America Chronological list of Supreme Court justices

By Due Process of Law

Racial Discrimination and the Right to Vote in South Africa 1855-1960

Author: Ian Loveland

Publisher: Bloomsbury Publishing

ISBN: 1847310834

Category: Law

Page: 456

View: 4668

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The South African case of Harris v. (Donges) Minister of the Interior is one familiar to most students of British constitutional law. The case was triggered by the South African government's attempt in the 1950s to disenfranchise non-white voters on the Cape province. It is still referred to as the case which illustrates that as a matter of constitutional doctrine it is not possible for the United Kingdom Parliament to produce a statute which limits the powers of successive Parliaments. The purpose of this book is twofold. First of all it offers a rather fuller picture of the story lying behind the Harris litigation,and the process of British acquisition of and dis-engagement from the government of its 'white' colonies in southern Africa as well as the ensuing emergence and consolidation of apartheid as a system of political and social organisation. Secondly the book attempts to use the South African experience to address broader contemporary British concerns about the nature of our Constitution and the role of the courts and legislature in making the Constitution work. In pursuing this second aim, the author has sought to create a counterweight to the traditional marginalistion of constitutional law and theory within the British polity. The Harris saga conveys better than any episode of British political history the enormous significance of the choices a country makes (or fails to make) when it embarks upon the task of creating or revising its constitutional arrangements. This, then, is a searching re-examination of the fundamentals of constitution-making, written in the light of the British government's commitment to promoting wholesale constitutional reform.

A Matter of Interpretation: Federal Courts and the Law

Federal Courts and the Law

Author: Antonin Scalia

Publisher: Princeton University Press

ISBN: 1400882958

Category: Law

Page: 200

View: 3911

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We are all familiar with the image of the immensely clever judge who discerns the best rule of common law for the case at hand. According to U.S. Supreme Court Justice Antonin Scalia, a judge like this can maneuver through earlier cases to achieve the desired aim—"distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal—good law." But is this common-law mindset, which is appropriate in its place, suitable also in statutory and constitutional interpretation? In a witty and trenchant essay, Justice Scalia answers this question with a resounding negative. In exploring the neglected art of statutory interpretation, Scalia urges that judges resist the temptation to use legislative intention and legislative history. In his view, it is incompatible with democratic government to allow the meaning of a statute to be determined by what the judges think the lawgivers meant rather than by what the legislature actually promulgated. Eschewing the judicial lawmaking that is the essence of common law, judges should interpret statutes and regulations by focusing on the text itself. Scalia then extends this principle to constitutional law. He proposes that we abandon the notion of an everchanging Constitution and pay attention to the Constitution's original meaning. Although not subscribing to the “strict constructionism” that would prevent applying the Constitution to modern circumstances, Scalia emphatically rejects the idea that judges can properly “smuggle” in new rights or deny old rights by using the Due Process Clause, for instance. In fact, such judicial discretion might lead to the destruction of the Bill of Rights if a majority of the judges ever wished to reach that most undesirable of goals. This essay is followed by four commentaries by Professors Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin, who engage Justice Scalia’s ideas about judicial interpretation from varying standpoints. In the spirit of debate, Justice Scalia responds to these critics. Featuring a new foreword that discusses Scalia’s impact, jurisprudence, and legacy, this witty and trenchant exchange illuminates the brilliance of one of the most influential legal minds of our time.

Magna Carta

Author: Anonymous

Publisher: Sovereign via PublishDrive

ISBN: 1909676519

Category: History

Page: 30

View: 4905

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The Magna Carta, issued in 1215 by King John. 'No free man shall be seized or imprisoned, or stripped of his rights or possessions ... except by the lawful judgement of his peers...To no one will we sell, to no one deny or delay right or justice.' Although not originally intended as a bill of rights, Magna Carta was used in these terms whenever people's liberties were challenged and is celebrated today as England's eary form of democracy. The continuing symbolic significance of Magna Carta was shown when the universal Declaration of Human Rights was presented to the United Nations in 1948 as a 'Magna Carta for the future'.

Desperately Seeking Certainty

The Misguided Quest for Constitutional Foundations

Author: Daniel A. Farber,Suzanna Sherry

Publisher: University of Chicago Press

ISBN: 9780226238104

Category: Law

Page: 219

View: 7321

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Irreverent, provocative, and engaging, Desperately Seeking Certainty attacks the current legal vogue for grand unified theories of constitutional interpretation. On both the Right and the Left, prominent legal scholars are attempting to build all of constitutional law from a single foundational idea. Dan Farber and Suzanna Sherry find that in the end no single, all-encompassing theory can successfully guide judges or provide definitive or even sensible answers to every constitutional question. Their book brilliantly reveals how problematic foundationalism is and shows how the pragmatic, multifaceted common law methods already used by the Court provide a far better means of reaching sound decisions and controlling judicial discretion than do any of the grand theories.

Gideon's Trumpet

Author: Anthony Lewis

Publisher: Vintage

ISBN: 030780528X

Category: History

Page: 288

View: 751

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A history of the landmark case of James Earl Gideon's fight for the right to legal counsel. Notes, table of cases, index. The classic backlist bestseller. More than 800,000 sold since its first pub date of 1964.

A Brief History of Circumnavigators

Author: Derek Wilson

Publisher: Robinson

ISBN: 1472113292

Category: History

Page: 160

View: 7553

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"Going round the world" is an idea that has excited people ever since it was realized that the earth was a sphere. The appeal has something to do with encompassing all the known environment and exploring the unknown, not only on the surface of the planet but within the spirit of the explorer. The story of circumnavigation is thus a long saga of human adventure, travel and discovery. Beginning with the fateful day in 1521 when Ferdinand Magellan was speared to death on Mactan and Juan de Elcano took up the challenge of bringing his surviving companions home, the story continues through four centuries crammed with astonishing exploits by men and women of many nations. Some of the names that feature are well-known, others less so.

A Brief History of Neoliberalism

Author: David Harvey

Publisher: OUP Oxford

ISBN: 019162294X

Category: Political Science

Page: 256

View: 9218

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Neoliberalism - the doctrine that market exchange is an ethic in itself, capable of acting as a guide for all human action - has become dominant in both thought and practice throughout much of the world since 1970 or so. Its spread has depended upon a reconstitution of state powers such that privatization, finance, and market processes are emphasized. State interventions in the economy are minimized, while the obligations of the state to provide for the welfare of its citizens are diminished. David Harvey, author of 'The New Imperialism' and 'The Condition of Postmodernity', here tells the political-economic story of where neoliberalization came from and how it proliferated on the world stage. While Thatcher and Reagan are often cited as primary authors of this neoliberal turn, Harvey shows how a complex of forces, from Chile to China and from New York City to Mexico City, have also played their part. In addition he explores the continuities and contrasts between neoliberalism of the Clinton sort and the recent turn towards neoconservative imperialism of George W. Bush. Finally, through critical engagement with this history, Harvey constructs a framework not only for analyzing the political and economic dangers that now surround us, but also for assessing the prospects for the more socially just alternatives being advocated by many oppositional movements.

American Constitutional History: A Brief Introduction

Author: Jack Fruchtman

Publisher: John Wiley & Sons

ISBN: 1119141753

Category: Law

Page: 304

View: 3049

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American Constitutional History presents a concise introduction to the constitutional developments that have taken place over the past 225 years, treating trends from history, law, and political science. Presents readers with a brief and accessible introduction to more than two centuries of U.S. constitutional history Explores constitutional history chronologically, breaking U.S. history into five distinct periods Reveals the full sweep of constitutional changes through a focus on issues relating to economic developments, civil rights and civil liberties, and executive power Reflects the evolution of constitutional changes all the way up to the conclusion of the June 2015 Supreme Court term

Lochner V. New York

Economic Regulation on Trial

Author: Paul Kens

Publisher: N.A

ISBN: 9780700609192

Category: Law

Page: 216

View: 7580

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Lochner v. New York (1905), which pitted a conservative activist judiciary against a reform-minded legislature, remains one of the most important and most frequently cited cases in Supreme Court history. In this concise and readable guide, Paul Kens shows us why the case remains such an important marker in the ideological battles between the free market and the regulatory state. The Supreme Court's decision declared unconstitutional a New York State law limiting bakery workers to no more than ten hours per day or sixty hours per week. By evoking its "police power," the state hoped to eliminate the employers' abuse of these workers. But the 5-4 majority opinion, authored by Justice Rufus Peckham and renounced by Justice Oliver Wendell Holmes, cited the state's violation of due process and the "right of contract between employers and employees," which the majority believed was protected by the Fourteenth Amendment. Critics jumped on the decision as an example of conservative juidicial activism promoting laissez-faire capitalism at the expense of progressive reform. As series editors Peter Hoffer and N.E.H. Hull note in their preface, "the case also raised a host of significant questions regarding the impetus of state legislatures to enter the workplace and regulate hours, wages, and working conditions; of the role of courts as monitors of the constitutionality of state regulation of the economy; and of the place of economic and moral theories in judicial thinking." Kens, however, reminds us that these hotly contested ideas and principles emerged from a very real human drama involving workers, owners, legislators, lawyers, and judges. Within the crucible of an industrializing America, their story reflected the fierce competition between two powerful ideologies.

How Progressives Rewrote the Constitution

Author: Richard Allen Epstein

Publisher: Cato Institute

ISBN: 9781930865877

Category: History

Page: 156

View: 8404

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How Progressives Rewrote the Constitution explores the fundamental shift in political and economic thought of the Progressive Era and how the Supreme Court was used to transform the Constitution into one that reflected the ideas of their own time, while undermining America's founding principles.

Vagrant Nation

Police Power, Constitutional Change, and the Making of the 1960s

Author: Risa Goluboff

Publisher: Oxford University Press

ISBN: 0199768447

Category: Vagrancy

Page: 480

View: 9713

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"In 1950s America, it was remarkably easy for police to arrest almost anyone for almost any reason. The criminal justice system-and especially the age-old law of vagrancy-played a key role not only in maintaining safety and order but also in enforcing conventional standards of morality and propriety. A person could be arrested for sporting a beard, making a speech, or working too little. Yet by the end of the 1960s, vagrancy laws were discredited and American society was fundamentally transformed. What happened? In Vagrant Nation, Risa Goluboff provides a truly groundbreaking account of this transformation. By reading the history of the 1960s through the lens of vagrancy laws, Goluboff shows how constitutional challenges to long-standing police practices were at the center of the multiple movements that made "the 1960s." Vagrancy laws were not just about poor people. They were so broad and flexible-criminalizing everything from immorality to wandering about-that they made it possible for the police to arrest anyone out of place in any way: Beats and hippies; Communists and Vietnam War protestors; racial minorities, civil rights activists, and interracial couples; prostitutes, single women, and gay men, lesbians, and other sexual minorities. As hundreds of these "vagrants" and their lawyers claimed that vagrancy laws were unconstitutional, the laws became a flashpoint for debates about radically different visions of order and freedom. In Goluboff's compelling portrayal, the legal campaign against vagrancy laws becomes a sweeping legal and social history of the 1960s. It touches on movements advocating everything from civil rights to peace to gay rights to welfare rights to cultural revolution. As Goluboff links the human stories of those arrested to the great controversies of the time, she makes coherent an era that often seems chaotic. She also powerfully demonstrates how ordinary people, with the help of lawyers and judges, can change the meaning of the Constitution. By 1972, the Supreme Court announced that vagrancy laws that had been a law enforcement staple for four hundred years were no longer constitutional. That decision, as well as the social movements and legal arguments that prompted it, has had major consequences for current debates about police power and constitutional rights. Clashes over everything from stop and frisk to homelessness to public protests echo the same tension between order and freedom that vagrancy cases tried to resolve. Since the early 1970s, courts, policymakers, activists, and ordinary citizens have had to contend with the massive legal vacuum left by vagrancy law's downfall. Battles over what, if anything, should replace vagrancy laws, like battles over the legacy of the sixties transformations themselves, are far from over"--

A Radical History Of Britain

Visionaries, Rebels and Revolutionaries - The Men and Women Who Fought For Our Freedoms

Author: Edward Vallance

Publisher: Abacus

ISBN: 1405527773

Category: History

Page: 384

View: 7113

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From medieval Runnymede to twentieth-century Jarrow, from King Alfred to George Orwell by way of John Lilburne and Mary Wollstonecraft, a rich and colourful thread of radicalism runs through a thousand years of British history. In this fascinating study, Edward Vallance traces a national tendency towards revolution, irreverence and reform wherever it surfaces and in all its variety. He unveils the British people who fought and died for religious freedom, universal suffrage, justice and liberty - and shows why, now more than ever, their heroic achievements must be celebrated. Beginning with Magna Carta, Vallance subjects the touchstones of British radicalism to rigorous scrutiny. He evokes the figureheads of radical action, real and mythic - Robin Hood and Captain Swing, Wat Tyler, Ned Ludd, Thomas Paine and Emmeline Pankhurst - and the popular movements that bore them. Lollards and Levellers, Diggers, Ranters and Chartists, each has its membership, principles and objectives revealed.

Making Sense of the Constitution

A Primer on the Supreme Court and Its Struggle to Apply Our Fundamental Law

Author: Walter M Frank

Publisher: SIU Press

ISBN: 0809330849

Category: Law

Page: 312

View: 7624

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In Making Sense of the Constitution: A Primer on the Supreme Court and Its Struggle to Apply Our Fundamental Law, Walter Frank tackles in a comprehensive but lively manner subjects rarely treated in one volume. Aiming at both the general reader and students of political science, law, or history, Frank begins with a brief discussion of the nature of constitutional law and why the Court divides so closely on many issues. He then proceeds to an analysis of the Constitution and subsequent amendments, placing them in their historical context. Next, Frank shifts to the Supreme Court and its decisions, examining, among other things, doctrinal developments, the Court’s decision making processes, how justices interact with each other, and the debate over how the Constitution should be interpreted. The work concludes with a close analysis of Court decisions in six major areas of continuing controversy, including abortion, affirmative action, and campaign finance. Outstanding by the University Press Books for Public and Secondary Schools