Copyright (c) 2009 All rights reserved. http://works.bepress.com/richard_aynes Recent documents in Richard L. Aynes en-us Wed, 28 Oct 2009 23:19:48 PDT 3600 http://works.bepress.com/richard_aynes/46 http://works.bepress.com/richard_aynes/46 Tue, 27 Oct 2009 12:29:27 PDT This article traces, in broad strokes, the history of the disputes about whether or not the Bill of Rights can be enforced against the states. It begins with pre-Fourteenth Amendment claims and recounts the actions of the 39th Congress: The Freedman's Bureau, the Civil Rights Act of 1866, and the Fourteenth Amendment. Several speeches on the Amendment from the Congressional elections of 1866 are utilized, including those of Section 1 author John Bingham, Congressmen Columbus Delano, Rutherford B. Hayes, James Wilson, James Garfield, and Senator John Sherman, as well as Democrats who participated in what has been termed the most racist national political campaign in U.S. history. By looking at the political shift begun in 1871 and the "long depression" (Panic of 1873), the article documents the reasons why the public understanding of the amendment can best be found during the period prior to ratification. There is a brief examination of Slaughter-House, Cruikshank, Hurtado, and Twinning. It suggests that one of the key mistakes in current scholarship is the assumption that certain rights could only be enforced by the state or the national government. Borrowing from Madison's concept of "double security" and Pomeroy's then contemporary treatise, it suggests that many rights can be protected by both. Utilizing numerous articles from Harper's Weekly, free speech is used as an illustration of the common, public understanding of the rights the public believe they had and intended to secure as a result of the war. The article explores common mistakes in confusing claims of substantive rights with non-discrimination and equality, noting that the two approaches often overlapped. Later sections examine the debates involving Charles Fairman, W. W. Crosskey, Justice Frankfurter, Justice Black, Raoul Berger, Michael Kent Curtis, George Thomas and Bryan Wildenthal. The current perils of trying to rely exclusively upon incomplete and inaccurate newspaper data bases is documented. New light is thrown upon the role of Senator Jacob Howard and his relationship Senator Fessenden, Chair of the Joint Committee on Reconstruction. Further, responding to another article in the symposium, this work concludes that the only real contemporaneous conflict between enforcing the Bill of Rights against the states and the grand jury was in the single state of Kansas. Finally, there is a brief examination of the future of scholarship upon these issues. Richard Aynes Constitutional Law Legal History http://works.bepress.com/richard_aynes/45 http://works.bepress.com/richard_aynes/45 Mon, 21 Sep 2009 13:05:20 PDT The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time. This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of 60% of the members who were freshmen and the 39th Congress had 40%of the members who had never been in Congress before. The relatively inexperience of the Congress as a whole would suggest that the senior members - men such as the members of the Joint Committee on Reconstruction - would exercise an enhanced amount of influence. This study also reports the initial results of a more detailed examination of its membership. A large majority - over 150 - of its members were lawyers. In an era in which only one per cent of the population had a college degree, a small sample of Congressman (those whose last name begins with the letter "D") 47% were college graduates. Further, an examination of individual Congressmen suggests that many of the college graduates had taken law-related courses in college. Though the apprenticeship model was still the predominant way in which lawyers came to the bar, there were numerous members of the Congress who both studied under the preceptor system and graduated from a law school. Three of the challenges the 39th Congress faced are examined. The first challenge was dealing with the immense of life and property because of the war. Second, though with the benefit of hindsight we know the Civil War was essentially over after the surrender of General Robert E. Lee's Army in April 1865, it was not clear at the time that this was the case. Not only did fighting continue, but individuals and whole military units fled to Mexico. President Johnson did not declare the insurrection at an end in most of the insurrectionary states until April 2, 1866 . President Johnson did not declare the insurrection over it in Texas until August 20, 1866, after three states had already ratified the Fourteenth Amendment. Third, Andrew Johnson's commitment to white supremacy mean that he was not just actively opposing the Congress on policy matters, but actually undermining the enforcement of the law and taking actions that, at least indirectly, resulted in the loss of life in the South. Congress responded to these conditions with the extension of the Freedman's Bureau Act, the adoption of the Civil Rights Act of 1866, and the proposal of the Fourteenth Amendment. Congress's overall goal - like national goals at the end of World War I, World War II, and the second Gulf War - was to end the war and secure the peace so that there would be no similar war in the future. The last portion of the article draws parallels between other post-war actions and that during Reconstruction and makes connections between the steps taken by the 39th Congress and their overriding goal of securing future peace. Richard Aynes Constitutional Law http://works.bepress.com/richard_aynes/44 http://works.bepress.com/richard_aynes/44 Tue, 08 Sep 2009 06:56:24 PDT This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as "rights" well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller's decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as "those rights which are fundamental." In exploring the meaning of the terms, the article notes it breadth, as articulated by Section 1 author John Bingham (R-Ohio) and Justice Strong in West Virginia v. Strauder. Examples are provided from Congressman Bingham, Justice Bradley, and Judge Thomas G. Jones in his turn of the century decision in Ex parte Riggins. Insight into how to apply the privileges or immunities clause is taken from Justice Robert Jackson, Justice Joseph P. Bradley and Justice Benjamin R. Curtis. Insight into the possibility that privilege and immunities would change is seen in the agreement between Justice Miller and Justice Bradley that constitutional amendments could change the content of the words. Further examples are given through the adoption of treaties and the 1866 Civil Rights Act. Because some concern has been expressed concerning the effect of using privileges or immunities clause upon establishment clause jurisidpurence, the history of the "secession" of slaveholders from the national churches and their establishment of pro-slavery churches which prohibited free exercise is examined. The insights provided by this history leads to the conclusion that a principled application of the privileges or immunities clause would not work any change in the current establishment clause jurisprudence. This approach is also tested with respect to a matter currently pending on certiorari in the U.S. Supreme Court: the enforcement of a right to bear arms against the states. The clauses are also analyzed to see how they would better protect the writ of habeas corpus than the inference drawn from Article I, Section 9, Clause 2. Finally, an example of how the use of the privileges and immunities clause might give a more principled and secure protection for established rights is illustrated by the application of the clauses to a "right of family life" that would replace the substantive due process approach used in Moore v. City of East Cleveland. The article concludes by noting that in spite of Saenz v. Roe, scholars and lawyers have not been very diligent in advancing claims under the privilege or immunities clause and provides reasons why such course should be pursued. Richard Aynes Constitutional Law http://works.bepress.com/richard_aynes/43 http://works.bepress.com/richard_aynes/43 Tue, 12 May 2009 10:20:40 PDT Three articles published in volume 5:1. Test Oath Cases, 36-372. Morrison Waite (1816-1888), 162-1633. Wirts, 269-271 Richard Aynes Legal History http://works.bepress.com/richard_aynes/42 http://works.bepress.com/richard_aynes/42 Tue, 12 May 2009 09:42:23 PDT Two articles published in volume 4:1. Secession, 352-3542. Stone v. Mississippi, 101 U.S. 814 (1880), 480-481 Richard Aynes Legal History http://works.bepress.com/richard_aynes/41 http://works.bepress.com/richard_aynes/41 Tue, 12 May 2009 09:25:17 PDT Richard Aynes Legal History http://works.bepress.com/richard_aynes/40 http://works.bepress.com/richard_aynes/40 Mon, 01 Dec 2008 10:25:03 PST Richard Aynes Constitutional Law http://works.bepress.com/richard_aynes/39 http://works.bepress.com/richard_aynes/39 Thu, 07 Feb 2008 11:38:21 PST JUNE 30, 2007 marked the conclusion of my twelve-year service as Dean of the University of Akron School of Law. During that time the University of Toledo Law Review initiated its very successful "Leadership in Legal Education Symposium" and I benefited from reading articles in the prior symposia. It was inspiring to read about the efforts, thoughts, concerns, and accomplishments of fellow deans. Sometimes those essays gave me reassurance, raised my curiosity, provided new ideas, gave me an opportunity to think about old matters from a different perspective, and even prompted healthy disagreement.Having benefited from the contributions of other deans for so many years, this year I felt obligated to try to make some small contribution to the joint enterprise. My goal in writing this essay is to expand on an area of common interest to many deans: how to strike a balance with family life and work. Richard L. Aynes Legal Education http://works.bepress.com/richard_aynes/38 http://works.bepress.com/richard_aynes/38 Thu, 06 Dec 2007 14:35:12 PST Richard L. Aynes Legal History http://works.bepress.com/richard_aynes/37 http://works.bepress.com/richard_aynes/37 Thu, 06 Dec 2007 14:11:07 PST Three articles: 1.) The Fourteenth Amendment 2.) Catherine (Kate) Chase Sprague 3.) The Impeachment Trial of Andrew Johnson Richard L. Aynes Legal History