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April 16, 2019|John Marshall, Joseph Story, Paul Finkelman, Roger Taney, Supreme Injustice

The Peculiar Institution and the Supreme Court

by Joyce Lee Malcolm|

Joseph Story (shutterstock.com)
Paul Finkelman’s account of antebellum decisions gets Justice Taney right, but not Justice Marshall, and especially not Justice Story.

March 12, 2018|Atlantic slave trade, Charles Beard, Chief Justice John Marshall, Joseph Story, Le Jeune Eugenie, Paul Finkelman, Roger Taney, Supreme Injustice, The Antelope, The Josefa Segunda

Failed Attempt to Cut Marshall and Story Down to Size

by Paul Moreno|

Lithograph of John Marshall by William Henry Brown, 1844 (Metropolitan Museum of Art)
Taney may well deserve to be “hooted down the page of history,” but it is unfair to take Marshall and Story with him.

August 30, 2017|Anti-Federalists, Charlottesville, Donald Trump, James McHenry, Luther Martin, Roger Taney

We Still Need Heroes

by Lauren Weiner|

The statue of Roger Taney was removed from the front lawn of the Maryland State House on Thursday night, Aug. 17, 2017. (Matthew Cole/Baltimore Sun/TNS via Getty Images)

Maryland’s state song made the front page of the Baltimore Sun yesterday. The marching band at the state university doesn’t want to play it at football games anymore.

The lyrics, set to the tune of “O Christmas Tree” by a secession-minded poet in 1861, begin: “The despot’s heel is on thy shore.” It’s a reference to the federal government. Marylanders are urged to use their “peerless chivalry” to rise up and defend the state: “She is not dead, nor deaf nor dumb. Huzza! She spurns the Northern scum!”

This egregious song comes up for debate every so often. For years there’s been a bill in the legislature in Annapolis proposing that it be replaced. Amid moves all across the country to ditch public reminders of American slavery and/or the Confederacy, the on-again-off-again campaign against “Maryland, My Maryland” is on again.

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August 22, 2017|Confederate monuments, Edmund Burke, Roger Taney, Thomas Jefferson

Can We Remember Well?

by Greg Weiner|

Perhaps, amid the profound divisions revealed by the national conversation over Confederate monuments, consensus could emerge over this: If their removal is justified, it should be carried out in the light of day.

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October 26, 2015|Justin Buckley Dyer, Lochner v. New York, Matthew Franck, Roger Taney, Slaughter-House Cases, Substantive Due Process

Who’s Afraid of “Substantive Due Process”?

by Hadley Arkes|

My good friend Matthew Franck has turned his considerable wit to the task of gleaning the meaning of due process from the history of our jurisprudence, English and American. And the account he published recently in American Political Thought—entitled “What Happened to the Due Process Clause in the Dred Scott Case? The Continuing Confusion over ‘Substance’ versus ‘Process’”[1]—must surely stand as one of the most searching and thoughtful in recent memory.

The lawyers and writers most concerned about “substantive due process” have also been the most reserved about natural law and natural rights. They have regarded as a high judicial offense the willingness of judges to import into their decisions notions of rights, or natural justice, that are not contained in the text of the Constitution. They tend to hold fiercely to a law composed of “procedures,” and to the strict terms of the positive law.

But as the question is opened to a closer, more probing view—and opened by Franck’s piece—I think it becomes all the clearer that the difference between “substantive” and “procedural” due process fades away: that the issue simply cannot claim the moral import that has been attached to it, or be as portentous in our constitutional law as the critics of “substantive due process” have long thought it to be.

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June 26, 2014|Charles River Bridge, Contract Clause, Democratic Party, Roger Taney

The Once Famous Charles River Bridge Case

by John O. McGinnis|

A reader asked for more discussion of  the Charles River Bridge decision, which I cited as a precedent against claims that taxis displaced by Uber were legally entitled to compensation.  Charles River Bridge is a fascinating Supreme Court case that is largely unknown to this generation of lawyers.  I remembered it only from discussions in American history class as a high school student.

The case marks the transition from the Marshall Court to the Taney Court. In fact, it was first argued under the Great Chief Justice but decided under Taney.   It shows how  Jacksonian democracy shifted the course of constitutional law.

The case revolved around bridges and the anti-monopoly principle.  The bridges at issue spanned the Charles River in Massachusetts.  That first bridge builder, the Charles River Bridge Company, argued that the state had given it a monopoly in return for building its bridge.    Thus a subsequent charter to another company for building another bridge violated the provision of the Constitution which bars states from “impairing the obligation of contracts.”

Justice Taney’s opinion based his reading on the original charter for Charles River Bridge company, which he interpreted as not granting any monopoly right. But his interpretation was heavily influenced by his democratic and indeed Democratic ideals.

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September 19, 2012|Dred Scott, Justice Benjamin Curtis, Justice Clarence Thomas, Roger Taney

Reminding Thomas: Ilya Somin on Clarence Thomas and “We the People”

by Richard M. Reinsch II|

In this post at Volokh, Ilya Somin challenges Justice Clarence Thomas' recent remarks that "We the People" in the Preamble of the Constitution did not include African-Americans when it was ratified in 1787. The history is much more complex and interesting than many know, obscured as it has been owing to Chief Justice Roger Taney's majority opinion in Dred Scott, which articulated that both the Declaration of Independence and the Constitution never recognized the rights of blacks who, in Taney's formulation, “had no rights which the white man was bound to respect.” Part of his conclusive proof was that the…

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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