Blog

Today we will continue covering future interests.

The lecture notes are here, and the live chat is here.

This is Henry VIII, who abolished the Statute of Uses.

He is most famous for breaking England away from the Roman Catholic Church so he could obtain a divorce from his first wife, Catherine of Aragon. She did not bear him a son, and he blamed her. Now we know that the Man provides the Y-chromosome, and is responsible for determining the gender of the offspring).

 Henry would go on to be married a total of 6 times, in his pursuit of a male heir.  Not all of his wives faired so well

Here is the rhyme we use to remember their fates: Divorced, Beheaded, Died, Divorced, Beheaded, Survived.

This helpful graphic summarizes the fate of Henry’s wives. Henry’s most famous offspring was Elizabeth, who became Queen Elizabeth I (remember Shakespeare in Love?).

The lectures notes are here. The live chat is here.

The lecture notes are here. The live chat is here.

The Reconstruction Amendments

• The Text, Structure, and History of the Reconstruction Amendments (1265-1266).
• The Thirteenth Amendment (1266-1267).
• The Fourteenth Amendment (1267-1271).
• Slaughter-House Cases (1271-1287) (Skim majority but read the dissents).
• Notes (1288-1291).
• Early Interpretation of Equal Protection (1292).
• Bradwell v. Illinois (1292-1295).
• Minor v. Happersett (1295-1301).
• Strauder v. West Virginia (1301-1306).

The Slaughter-Houses Cases

Here is a wood-cutting of the New Orleans Slaughterhouse.

Bradwell v. Illinois

This is Myra Bradwell, who sought admission to the Illinois Bar, leading to the Supreme Court’s decision in Bradwell v. Illinois.

Bradwell would become the editor of the Chicago Legal News, the first legal publication in the United States edited by a woman. The publication launched in 1868. Here is the first issue.

The Library of Congress has a copy of the first volume of the Chicago Legal News, donated by Susan B. Anthony. Even cooler, it includes a hand-written note in Anthony’s hand, which alludes to Bradwell v. Illinois.

It reads:

The first legal paper edited by a woman – Myra Bradwell – This file is from 1868 & 1869 – It was Mrs. Bradwell whose right to be admitted to the Bar of Illinois was carried up to the United States Supreme Court.  Senator Matthew Carpenter made the argument for her.

Congressional Library
Washington DC

Susan B. Anthony
Rochester – N.Y-

Jan. 1.1905

Minor v. Happersett

This is Virginia Louise Minor, who attempted to vote in an election. Her case wound its way all the way to the Supreme Court, which held in Minor v. Happersett that voting was not a privilege or immunity of citizenship.

This is the 1848 Declaration of Sentiments, authored by Elizabeth Cady Stanton, and other leading suffragists at the Seneca Falls Convention in July of 1848. Relevant to our discussions are the provisions concerning coverture, and the inability of women to own, use, and dispose of property. Among the other “”injuries and usurpations on the part of man toward woman”:

• He has made her, if married, in the eye of the law, civilly dead.
• He has taken from her all right in property, even to the wages she earns.
• He has so framed the laws of divorce, as to what shall be the proper causes of divorce, in case of separation, to whom the guardianship of the children shall be given; as to be wholly regardless of the happiness of the women—the law, in all cases, going upon a false supposition of the supremacy of a man, and giving all power into his hands.

The 19th Amendment, which prevented states from denying the franchise to woman, was ratified on August 18, 1920.

Strauder v. West Virginia

Taylor Strauder, a black man, was convicted of murder by an all-white jury. Strauder challenged his conviction because West Virginia excluded all African-Americans from the jury. The Supreme Court held that this exclusion based on race violated the Equal Protection Clause.

The Virginia Attorney General decided not to defend the state’s constitutional ban on same-sex marriage in federal court. The district court ruled in his favor. Usually, when a party prevails in the lower court, it does not appeal. But we aren’t dealing with normal litigation here.

The Virginia AG has decided to appeal a ruling he agreed with as a “procedural move,” even though he agrees with the lower court’s ruling. What is the procedural move? Unless the government appeals, and is present in the case, it would have to be dismissed for lack of standing. This is similar to California’s decision to appeal the Prop 8 Judgment, even thought it agreed with Judge Walker’s decision, and with the United States’s decision to appeal the decision in Windsor, even thought it agree with the lower court.

The practice of  states appealing judgments they agree with, just to get it before a higher court, strikes me as odd. But this is the new normal in the same-sex marriage litigation.

Last weekend I presented a paper at the University of Tennessee Law Review’s Symposium on the Second Amendment, discussing the link between the 1st Amendment, 2nd Amendment, and 3D Printing. Glenn Reynolds gave the keynote address for the symposium, discussing how now, after nearly two decades, the Second Amendment is “ordinary constitutional law.” Glenn summarizes his article in USA Today:

At present, we’ve reached the point where the Second Amendment can be characterized as ordinary constitutional law. That is, it now protects a right that attaches to individuals, and that those individuals can enforce in federal court.

Of course “ordinary constitutional law” doesn’t mean that everything is settled — in fact, an area in which all the legal questions were settled once and for all would be more like extraordinary constitutional law. But it does mean that questions relating to gun ownership, gun carrying, and the like are now dealt with in the same way that federal courts deal with other questions of constitutional rights.

This is an important point. An early objection to the Second Amendment following Heller, was that it would be too hard for courts to manage and balance this dangerous right. Of course, it would be no more or less difficult to balance than some other fairly controversial rights that have had a lengthy pedigree in the U.S. Reports. Now, a few years after Heller, the courts are making their way towards figuring out the contours of the Second Amendment (though, so far, the Supreme Court has abdicated this topic since McDonald was decided). No matter how much Justice Stevens wants to resist, the Second Amendment is ordinary law constitutional law.

We have come a long, long way in 20 years. When I took constitutional law in the fall of 2007, I don’t think there was more than a paragraph in my textbook about the Second Amendment.  Fortunately, as a student at George Mason, I was in ground zero for the Second Amendment. During my 1L year, Parker v. District of Columbia (what would become Heller) was decided. During the summer after my 1L year, I attended the Institute for Justice workshop, where I met Clark Neily. At the time, Clark, along with Alan Gura and Bob Levy (an alum of GMU) were responding to the District of Columbia’s cert petition. I volunteered as a research assistant for Gura, Neily, and Levy, cite-checking the final merits brief during an intensive session at the Institute for Justice’s Arlington headquarters.

During my 2L year, I was fortunate enough to take The Founders Constitution with Nelson Lund, one of the pre-eminent scholars on the Second Amendment. I don’t think there is any other class in the country that compared the prefatory and operative clauses in the Northwest Ordinance of 1787 and the Second Amendment. I served as a research assistant for Lund’s amicus brief in Heller on behalf of the Second Amendment. I think my only meaningful contribution was the addition of the word “Leviathan” (a favorite of mine) in this sentence: “Note also that–while it may not be immediately obvious to readers conditioned by experience with the modern regulatory Leviathan–the term “well regulated” need not mean heavily regulated or more regulated.”

I remember the day Heller was decided quite well. The firm where I summered sent us on a junket, err business trip, to Las Vegas and Los Angeles for a week (see my recital of the good ‘ol days here). On the final day of the Court’s term, I was up early on Pacific time, waiting for the opinion to drop. Once I saw it was affirmed, I couldn’t believe it. I read the entire opinion, cover to cover (we didn’t have much work in any event). It was a remarkable triumph of the history and scholarship began decades earlier. And, I knew minutes later, Alan had already filed suit in Chicago, in what would become McDonald v. City of Chicago.

After Heller was decided, I took a class on Common Law and American Rights with one of the foremost Second Amendment historians, Joyce Malcolm, and wrote my first substantive paper on the history used in the District of Columbia v. Heller. And, way ahead of my own time, I criticized Justice Stevens for incorrectly applying originalism, and faulting Judges Wilkinson and Posner for their positions on the Second Amendment. You can read the paper here, titled “Originalism for Dummies, Pragmatic Unoriginalism, and Passive Liberty: An Originalist Critique of the Heller Dissents and Judges Posner’s and Wilkinson’s Unoriginalist Assault on the Liberty to Keep and Bear Arms.” I’m sorry I never sent this article for publication.

In the years since Heller, and McDonald, the amount of scholarship of the Second Amendment has exploded. So much so, that I can’t even keep up with all the new scholarship and court opinions. It is now, indeed, “ordinary constitutional law.” With all the good and bad that comes with it.