By John Hart Ely
John Hart Ely is a number one modern author on political concept from the perspective of yankee constitutional legislations. This assortment covers a whole diversity of issues of constitutional interpretation: federalism, separation of powers, freedom of expression, spiritual freedom, felony method, racial discrimination, "substantive due strategy, " and honesty in executive. geared up less than those heads and associated through the author's witty explanatory and autobiographical comments, the essays and different documents--many formerly unpublished in any forum--range chronologically during the last 3 a long time, from memoranda he wrote as a scholar operating with lead information Abe Fortas at the landmark case of Gideon v. Wainwright to a touch upon the constitutional implications of the O. J. Simpson verdict. ahead of starting his educational occupation, Ely was once the junior member of the Warren Commission's sixteen-lawyer employees, leader Justice Earl Warren's legislation clerk, and a public defender in San Diego; and through the Ford management he took time without work to function the third-ranking legitimate of the U.S. division of Transportation. This booklet displays his a variety of adventure. It reviews on the various earlier zone century's "hot button" issues--including abortion, affirmative motion, anti-Communist laws, busing, flag burning, governmental exhibit of nativity scenes, the Nixon impeachment, "trial by way of newspaper, " the Clarence Thomas-Anita Hill contretemps, congressionally unauthorized struggle within the Persian Gulf and Bosnia, and no matter if the Warren fee file might be formally reexamined.
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Extra info for On Constitutional Ground
I never doubted for a minute that it should be, but I now know the reason . . Thayer. ) Thus I seem to be one of the few who doesn’ t get it, but I’ll nonetheless forge fearlessly ahead. “The Origin and Scope of the American Doctrine of Constitutional Law” . . not the American doctrine of judicial review, but the American doctrine of constitutional law. Thus Thayer meant to be talking about what the Constitution means, not just about the way judges should behave. It seems to me the article can be read a couple of different ways: I don’ t think Thayer himself was clear about which he meant.
This helpful distinction has unfortunately not been maintained in the literature. Nor has Professor Kurland’ s suggestion that Erie be renamed “York” found wide acceptance. See Kurland, “Mr . Justice Frankfurter: The Supreme Court and the Erie Doctrine in Diversity Cases,” 67 Yale L. J. 187, 187–88 (1957). F EDERALI SM 41 federal rule (or at least any Federal Rule31) that is even arguably procedural is to be applied in a diversity action, state law to the contrary notwithstanding. This surely does not seem even remotely to capture Erie’ s true meaning.
16 Of similar contour are cases like McCray v. United States,17 which involved the taxation of white oleomargarine at one quarter cent a pound and colored oleomargarine at ten cents a pound. While both taxes are “real,” no examination of legislative history is needed to tell us that the discrepancy between them was designed to discourage the coloring of oleomargarine. And that is a goal difficultto justify in terms of any independent constitutional grant of congressional power. The theory this article proposes would therefore seem potentially applicable, in that the challenged distinction was created in order (1) to control behavior whose control is left exclusively to the states, or in the alternative (2) to achieve a goal encompassed by no other constitutional grant of power.