Studies in Law, Politics and Society: Volume 53

This chapter explores the “Constitutional Revolution” of the 1930s, as it played out beyond the walls of the U.S. Supreme Court. It argues that a radically revised historical memory of the Constitution accompanied the ascent New Deal liberalism. Prior core values associated with the Constitution's history, such as federalism and the sanctity of private property, were dramatically downgraded, while the civil liberties embodied in the Bill of Rights dramatically rose. By so redefining their historical memory of the Constitution, Americans could enjoy the active government that most desired while still celebrating the constitutional traditions of individual freedom and limited government.

There is a puzzle at the heart of the history of the English criminal trial. Defendants accused of serious crimes were denied counsel, but not defendants accused of minor crimes. Why? Sir William Blackstone could find no explanation and denounced the rule as contrary to the “face of reason.” This article proffers an answer. The rule is traced to the thirteenth century and a strong view of the royal prerogative. Royal interests were at stake, and counsel would not be permitted against the king acting ex officio. The rule seems to have been distinctly English; it does not appear to have been transplanted from the Roman-canon law. The rule continued in England, bolstered by new justifications, long after its original rationale had been forgotten.

This chapter examines ways the Spanish Constitution of 1812, also known as the Constitution of Cádiz, has been viewed in historical and constitutional thought. The document is a liberal constitution establishing constitutional rights, a representative government, and a parliamentary monarchy. It influenced ideas of American equality within the Spanish Empire, and its traces are observed in the process of Latin American independence. To these accepted views, one must add that the Constitution was a lost moment in Latin American constitutional development. By the immediate politicization of constitutionalism after 1812, the document marks the beginning of constitutional difficulties in the region.

This chapter argues that the theoretical core of the First Amendment can be found in the concept of disestablishment, and that the meaning of disestablishment can be, and has been, extended from the religious sphere to the secular. It explores the historical development of rights of conscience and dissent, and the application of those rights to various changing historical circumstances, such as the development of political parties and the struggle over slavery. It then turns to an application of this analysis to several contemporary First Amendment controversies, including campaign finance and sexual expression.

The past several decades have seen a tremendous increase in the U.S. incarceration rate, with varying trends in other advanced industrial democracies. These developments have only recently begun to attract the attention of political scientists. This chapter provides a critical review of recent literature on mass incarceration by both political scientists and scholars in related disciplines, and a discussion of directions for further research. I argue that further work in this area should involve theoretically informed analysis of interactions between criminal justice experts and professionals, elected politicians, and the public at large, with particular attention to how public concerns about crime are parsed and interpreted by public officials in the making of penal policy.

The study of cause lawyers has focused heavily on the private sector, but both public and private attorneys bring voting rights litigation. This chapter first situates voting rights litigation within cause lawyering, as described by Scheingold and Sarat. It then suggests criteria for analyzing cause lawyering across public and private sectors and applies them to the attorneys who have done the majority of voting rights litigation for American Indians: The Voting Section of the U.S. Department of Justice's Civil Rights Division and the Voting Rights Project of the American Civil Liberties Union. The chapter suggests that the public and private attorneys are more similar than one might expect in their motivation, relationship to clients, and range of political strategies used. Their organizational practice sites differ greatly, but the dynamics of the public practice site confirm that Voting Section attorneys are cause lawyers.