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Unpublished Paper
Why Harlan Fiske Stone (Also) Matters
ExpressO (2012)
  • Eric H Schepard
This article argues that Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. It examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate Justice of the Supreme Court from 1925-41, Stone’s visionary critiques of formalistic, extra-textual interpretations of Congress’s power support the constitutionality of the Affordable Care Act’s individual mandate. Even more importantly, Stone’s devotion to judicial restraint when assessing the constitutionality of laws that he, his Party, and the President who appointed him opposed, contrasts sharply with the troublingly partisan divisions of the current Court. Finally, Stone’s dissent in Minersville v. Gobitis, though largely overlooked in the contemporary legal literature, bravely defended the rights of a religious minority suspected of disloyalty during a surge of national paranoia that closely resembles the public’s current apprehension toward Muslim Americans. This article also analyzes less attractive aspects of Stone’s legacy, including his appointment of J. Edgar Hoover to head the BI and his opinion upholding the military’s mistreatment of aliens and citizens of Japanese descent during World War II.
Publication Date
February 28, 2012
Citation Information
Eric H Schepard. "Why Harlan Fiske Stone (Also) Matters" ExpressO (2012)
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