rss_2.0British Journal of American Legal Studies FeedSciendo RSS Feed for British Journal of American Legal Studies Journal of American Legal Studies Feed Constitution, Invasion, Immigration, and the War Powers of States<abstract> <title style='display:none'>Abstract</title> <p>By express and implied reservation, the Constitution permits states to wage defensive war and take other military action in response to invasion, insurrection, and transnational criminal gangs. This article examines the under-researched area of state war powers and how they interact with federal military and other foreign affairs powers. It also recovers the meaning of the Constitution’s term “invasion” and demonstrates that several judicial decisions have construed that term far too narrowly. The article ends with reflections on justiciability and remedies in state war power cases.</p> </abstract>ARTICLEtrue of Complete Substitutes and Fall of the Origination Clause in the Post-Ratification Era<abstract> <title style='display:none'>Abstract</title> <p>The Constitution’s Origination Clause requires the House of Representatives, the chamber considered closest to the people, to originate all bills for raising revenue. This clause allows Senate amendments to these bills. However, may Senate amendments completely replace House revenue bills with new revenue bills, as occurred with the Affordable Care Act of 2010?</p> <p>My previous research argued the original public meaning of amendment—how a “reasonable speaker of English” would have understood that word in the founding era—disallows complete substitutes. Historical legal arguments justifying the Senate’s complete substitutes rely on quotes from Thomas Jefferson’s important <italic>Manual of Parliamentary Practice</italic> (1801) saying, for example, “[a] new bill may be ingrafted by way of amendment on the words ‘Be it enacted[.]’” These arguments also cite examples of complete substitutes in Congress from the mid-to-late 1800s, particularly the Senate’s attempted substitute to a House revenue bill in 1872. But no previous research has examined congressional amendment practice during the important post-ratification period of 1789 to 1799 (First through Fifth Congresses), which represents the republic’s first decade and which can be the most suggestive of original meaning.</p> <p>This article tracks the rise of Congress’ complete substitutes—whether to revenue or other legislation—during the first decade and even until 1805. Throughout the entire period under examination, the Senate made no complete substitutes to House revenue bills. The first actual complete substitute to any legislation occurred to a Senate resolution in 1800 when Jefferson was that chamber’s presiding officer, and this episode obviously occurred after the first decade. There was thus no trace of any accepted, let alone consistent, practice of complete substitution in the earliest Congresses. Accordingly, the post-ratification history of amendment practice confirms the original meaning of amendment and indicates Jefferson’s quotes and the historical legal arguments lack a significant foundation in originalism. Later Senate practice as in 1872 allowing complete substitutes to House revenue bills, which Jefferson surely enabled, disregarded the original meaning of amendment in the Origination Clause. But perhaps—given this article’s findings—this original meaning will return to prominence.</p> </abstract>ARTICLEtrue, Disqualification, and the Presidency<abstract> <title style='display:none'>Abstract</title> <p>Section 3 of the Fourteenth Amendment provides in part that anyone who takes an oath as an officer of the United States to support its Constitution but engages in insurrection may not hold any civil or military office under it until Congress removes the disability by a two-thirds vote of each House. The insurrection of January 6, 2021, and the coming presidential election raise two pressing constitutional questions. For purposes of Section 3, is the President an officer of the United States, and is the Presidency an office under the United States?</p> <p>This Article makes the case that the President is an officer of, and holds an office under, the United States for those purposes. It contributes to the debate over the provision's reach by setting out the broad case for Section 3's application to Presidents and the Presidency, utilizing text, purpose, legislative history, canons of construction, ordinary usage, and contemporaneous judicial and executive interpretations.</p> <p>The Article demonstrates public understandings before and after ratification that Section 3 bars eligibility to the Presidency, both in general and for the most important disqualified rebel—Jefferson Davis. It catalogues descriptions of Presidents as officers of the United States from Washington in 1794 to Jefferson, Jackson, Van Buren, Harrison, Polk, Taylor, Fillmore, Buchanan, Lincoln, Johnson, Grant, and Garfield, many of which occurred in the context of the President's election, constitutional position, and role in preventing domestic violence, preserving the Union, and enforcing the law during Reconstruction. Finally, it ties related Reconstruction statutes, legislative history, and contemporaneous judicial and executive interpretations into the broad case that Section 3 bars faithless Presidents from again taking the oath to “preserve, protect and defend the Constitution of the United States” until Congress permits.</p> </abstract>ARTICLEtrue Justice: Slavery in the Judicial Imagination Thinking and Appearance-based Recusal<abstract> <title style='display:none'>Abstract</title> <p>This article is a critical analysis of a fundamental judicial ethic, the appearance of impartiality, an increasingly important public issue that is poorly understood and woefully underexamined in jurisprudence and academic literature. The ethic is pivotal to the determination of judicial disqualification, a/k/a recusal, and the public's fragile trust in the rule of law.</p> <p>The article explains how a mysterious metaphorical device, the “reasonable observer” (a descendant of the common law's “reasonable man”) has been subjectively applied in a confusing and inconsistent manner in judicial disqualification cases. The unexamined approach has unwittingly undermined the plain text and the mandatory ethical obligation of recusal (i.e., a judge must disqualify when his or her impartiality might reasonably be questioned).</p> <p>The discussion: (a) analyzes the theoretical underpinnings of the reasonable person-observer analytical tool (“heuristic”); (b) explains how American jurisprudence has glibly transmogrified the appearance-recusal precept; (c) provides a unique and starkly contrasting analytical perspective demonstrating how select common law-based jurisdictions (Australia, Canada, Singapore, South Africa, United Kingdom) have painstakingly examined and applied the widely-recognized norm of appearance-based impartiality; and (d) synthesizes the preceding theoretical and jurisprudential information to support a proposal for a recalibrated metric and a pragmatic, clarifying heuristic. The article concludes with a model provision, in the form of a guiding “commentary,” that summarizes the essential aspects of the appearance of bias precept. The article provides an interpretative approach that attempts to be faithful to the letter and spirit of the foundational judicial ethic.</p> </abstract>ARTICLEtrue Crown Privilege to State Secrets<abstract> <title style='display:none'>Abstract</title> <p>The state secrets privilege is the most formidable evidentiary privilege available to the United States government. Available only to the executive branch, it is used to protect national security information from disclosure during litigation, and is habitually acquiesced to by courts. Once invoked, the privilege prevents covered material from being put into evidence that touches sensitive matters of national security. It is apparent that this privilege is subject to abuse by the executive branch to shield activities and personnel from judicial scrutiny and legal inquiries for reasons other than to protect national security. The privilege derives from British and Scottish doctrines of Crown Privilege that allow government to withhold evidence from legal proceedings to protect the public interest. The derivation of the state secrets privilege from the tradition of Crown Privilege has never been thoroughly explored. This article traces the influence of Crown Privilege in the development and evolution of the state secrets doctrine in the United States.</p> </abstract>ARTICLEtrue What Tangled Webs We Weave—Unpacking (and Unpicking) the Majority Opinion in<abstract> <title style='display:none'>Abstract</title> <p>This paper evaluates the majority judgment in the United States Supreme Court in Dobbs v. Jackson Women's Health Organization. It is suggested that much of what is said in the majority opinion ostensibly appears eminently defensible if viewed solely from a narrowly legalistic perspective. But closer analysis suggests that the majority's reasoning has some weaknesses when viewed within that limited paradigm. A further line of inquiry assesses whether adopting such a ‘legalistic’ approach to the question of abortion rights is in any event an appropriate position for the Court to adopt. The final section of the paper explores two additional contextual issues: the first relates to the personal ethical integrity of some of the majority judges; the second to the adequacy of State political processes as a means to address the abortion rights controversy.</p> </abstract>ARTICLEtrue's Daughters? Unenumerated Fundamental Rights and the Constitution<abstract> <title style='display:none'>Abstract</title> <p>How to determine whether fundamental unenumerated constitutional rights exist, and if so, what they are? The questions are of obvious enormous importance—witness the current controversy over abortion—and yet courts have generally been content to address the issues superficially, sometimes, cavalierly. Their treatment of the most common rationale, an historical/traditional consensus, exemplifies this shallow approach. The underdeveloped character of the argumentation on this topic stubbornly remains one of the most glaring shortfalls of modern constitutional law.</p> </abstract>ARTICLEtrue Confederate Admiralty Court at Key West<abstract> <title style='display:none'>Abstract</title> <p>In 1861, the Confederate States of America authorized the establishment of a “Court of Admiralty and Maritime Jurisdiction” at Key West. Although a judge was appointed, the court never sat because the island remained in Union hands throughout the Civil War. After first describing the court's creation and staffing, this article highlights the various procedural and practical problems the court would have faced if it had been able to operate.</p> </abstract>ARTICLEtrue Key West “jack-of-all-trades”: The Strange Life, and Peculiar Death, of Dr. Daniel W. Whitehurst<abstract> <title style='display:none'>Abstract</title> <p>In 1845, lawyer-turned-physician Daniel W. Whitehurst, originally from Virginia, moved to Key West. By the time of his death in 1872, Whitehurst had served as the city's mayor, state senator, and captain of its rebel guard. Nevertheless, Whitehurst now is an unknown figure. Buried with him is his cause of death, which may have been suicide.</p> </abstract>ARTICLEtrue's Note“Keeping Tabs”: Spanish Consular Activities in Key West, 1829–70<abstract> <title style='display:none'>Abstract</title> <p>This essay describes the work of Spain's consuls in Key West between 1829 and 1870. Although Spain sold Florida to the United States in 1821, it retained a keen interest in Key West (primarily due to the city's proximity to Cuba). As their country's “eyes and ears,” Spain's consuls were expected to keep their superiors in Madrid briefed on the latest developments, a task they pursued with vigor.</p> </abstract>ARTICLEtrue William Marvin and the Law of Salvage<abstract> <title style='display:none'>Abstract</title> <p>This essay explores the salvage decisions rendered by William Marvin during his time as a judge in Key West (1839–45; 1847–63). It also discusses his celebrated treatise on salvage law (1858), which cemented his reputation as one of America's leading authorities on maritime law. Lastly, it recounts how Marvin superintended the city's notorious wrecking industry.</p> </abstract>ARTICLEtrue Britain and the Confederacy<abstract> <title style='display:none'>Abstract</title> <p>This essay describes the efforts of the Confederate States of America to convince Great Britain to support its secession from the United States. Although the South's leaders were confident that Britain's need for cotton would lead it to become an ally, numerous factors—including the British public's aversion to slavery—contributed to the country remaining neutral.</p> </abstract>ARTICLEtrue Musings: a Selective Bibliography of Early Key West<abstract> <title style='display:none'>Abstract</title> <p>This bibliography identifies and describes 75 works that focus on Key West during its first 50 years (1821–71) as a U.S. possession. General, legal, and popular culture materials are included.</p> </abstract>ARTICLEtrue Marvin Goes to Key West<abstract> <title style='display:none'>Abstract</title> <p>This essay provides a sketch of William Marvin's first decade in Key West (1835–45). In this period, Marvin, originally from New York, served as the territory's U.S. district attorney (1835–39) and its second territorial judge (1839–45). It was during this time that Marvin became acquainted with the city's wrecking industry and began to develop his interest in salvage law.</p> </abstract>ARTICLEtrue“Mad Passions of the Hour”: Key West and the Civil War<abstract> <title style='display:none'>Abstract</title> <p>This review discusses two recent books that focus on Key West in the Civil War. Employing vastly different approaches, both works will have their share of admirers and detractors. Given the complexity of Key West's role in the Civil War, however, much fertile ground remains for future researchers.</p> </abstract>ARTICLEtrue Schooner Enterprise: a Forgotten Key West Murder Case<abstract> <title style='display:none'>Abstract</title> <p>In 1859, Key West found itself transfixed by a sensational criminal trial. Styled United States v. Carcer, Eloy, and Davis, and presided over by William Marvin, the island's legendary federal judge, the case involved a mutiny-murder aboard the slave ship Enterprise. Although famous in its day, the tale has been all but forgotten due to the Great Key West Fire of 1886, which destroyed nearly every record of the affair.</p> </abstract>ARTICLEtrue Confederate Law of Prize<abstract> <title style='display:none'>Abstract</title> <p>This essay describes the prize law of the Confederate States of America. Due to the Union's blockade of the South's coastline, Confederate judges heard very few prize cases. But when they did, they closely hewed to the prize law of the United States.</p> </abstract>ARTICLEtrue Court (if any) Decided —A Correction for Justice Sotomayor (and others)