Gaping Gaps in the History of the Independent State Legislature Doctrine: McPherson v. Blacker, Usurpation, and the Right of the People to Choose Their President (original) (raw)
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Hofstra Law Review, 2004
A convocation to inaugurate a new distinguished professorship of constitutional law naturally invites reflections on the question whether the current state of United States constitutional law makes it worth professing. Of course, such an occasion also stacks the deck against a negative answer. It would be ingratitude of the worst sort for me to accept the law school's hospitality, eat the cheese and drink the wine promised at the end of our speech-making, and devote my speech to declaring that the distinction conferred upon my esteemed colleague and good friend, Eric Freedman, is a wrongheaded venture from the get-go. So I will not take it that far. But I will assert that a significant part of constitutional law as it is doctrinally understood and taught in law schools today is as dead as Davie Crockett's beaver hat and that it is amazing that we go on understanding it and teaching it and writing about it in the way we do. I refer to the Bill of Rights and the guarantees of due process and equal protection that are supposed to safeguard the rights of criminal defendants and of persons suspected of doing or plotting violent criminal misdeeds.
The New Frontier of State Constitutional Law
2006
Abstract: In the past decade, a new frontier of constitutional discourse has begun to emerge, adding a fresh perspective to state constitutional law. Instead of treating states as jurisdictional islands in a sea under reign of the federal government, this new approach sees states as co-equals among themselves and between them and the federal government in a collective enterprise of democratic self-governance.
Owen W. Gallogly - Equity's Constitutional Source - 132 Yale Law Journal 1213-1599 (March 2023)
Over the past three decades, the Supreme Court has led a historicist revolution in equity jurisprudence. In a series of decisions known as the "new equity" cases, the Court has sought to limit federal equitable remedies to the forms of relief typically issued by the English Court of Chancery at the Founding. It has read this stringent limitation into various federal statutes that refer to equity-from the Employment Retirement Income Security Act to the Judiciary Act. But these cases miss the mark on their own quasi-originalist terms. By focusing on statutes as the basis for the judiciary's power to grant equitable relief, the Court has overlooked the underlying source of that power: the provision of Article III that extends "[t]he judicial Power" to cases in "Equity." This Article uncovers federal equity's constitutional source. Applying the Supreme Court's historically inflected methodology, it argues that "[t]he judicial Power" in "Equity" is best understood as vesting the federal courts with inherent power to grant equitable relief. That power is coextensive with the remedial authority of the Founding-Era English Chancellor. Put simply, Article III empowers federal courts to apply the system of equitable remedies administered by the Court of Chancery in 1789 as the baseline of federal equity power. Thus, absent express congressional action (which is rare), it is Article III itself-not federal statutes-that defines the limits of federal equity. Returning equity to its constitutional source suggests that the judiciary has greater leeway to develop the federal system of equitable remedies than the Court's time-bound new equity cases seem to permit. To be sure, the remedial power incorporated by Article III was not illimitably flexible. Founding-Era Chancellors were bound by settled rules from which they did not depart absent legislative authorization. But nor was it fixed in time. Chancery could elaborate the system of equitable remedies in a gradual, accretive, precedent-based way. Article III vests an equivalent power in the federal courts. By ignoring this power and instead tying federal equity to particular statutes, the Court has, in the name of fidelity to history, adopted an ahistorical, cramped understanding of the federal equity power.
Journal of Civil Rights and Economic Development, 2012
He served as co-counsel to plaintiffs since 1982 in both McDuffy and Hancock. This article would not have been possible were it not for the invaluable research, writing, and editing of Pamela Verasco, a second year law student at New England School of Law. This article is dedicated to the courage demonstrated by the dissents of Justices Greaney and Ireland in Hancock and Judge Botsford for her unswerving dedication to the facts, to the years of hard work of Michael D. Weisman, co-counsel in both McDuffy and Hancock, to Rebecca McIntyre, Emiliano Mazlan, and Peter Montgomery, co-counsel in Hancock, and to the Council for Fair School Finance, who helped make these cases possible. 1 JOHN ADAMS, Thoughts on Government, in 4 WORKS OF JOHN ADAMS 193, 199 (C.F. Adams ed. 1851). 2 See THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.