The American Legal History Podcast

In episode twenty-six we will continue our discussion with Professor Professor Vernon Burton and Civil Rights attorney Armand Derfner, on their brilliant book, Race and the Supreme Court. We will examine the slow evolution of the US Supreme Court on issues of social justice in the mid-20th century, culminating with it’s full-throated support in the 1950’s and 60’s. This was followed by a steady decline in that support, especially in the last ten years under Chief Justice John Roberts.

Today we have two very special guests, Professor Orville Vernon Burton and Professor Armand Derfner. Their book Justice Deferred: Race and the Supreme Court, is the first that comprehensively charts the Court’s race jurisprudence. Addressing nearly two hundred cases involving America’s racial minorities, they explore the parties involved, the justices’ reasoning, and the impact of individual rulings. Orville Vernon Burton is a prizewinning author of many books, including The Age of Lincoln. He is the Judge Matthew J. Perry Chair of History at Clemson University and Emeritus University Scholar at the University of Illinois. Inducted into the Morehouse College Martin Luther King Jr. Collegium of Scholars, he is also a recipient of the Southern Historical Association’s John Hope Franklin Lifetime Achievement Award. Armand Derfner, a graduate of Princeton University and Yale Law School, has been a civil rights lawyer for more than a half century.  As part of that work, he helped shape the Voting Rights Act in a series of major Supreme Court cases and in work with Congress to help draft voting rights and other civil rights laws.  He is currently Distinguished Scholar in Constitutional Law at the Charleston School of Law.

In this episode we will explore American law between the Revolution and the Civil War. Sometimes referred to as the Golden Age of American Law, it featured some of the most celebrated lawyers and judges in our history. We will also take a close look at the development of the common law of contracts and torts. I will tell you about John Marshall's successor as Chief Justice of the United States Supreme Court, Roger Brooke Taney and his very different judicial outlook. Lastly we will examine the extraordinary story of the birth of the business corporation and its impact on American life.

During the course of the long nineteenth century, a great debate took place between those who wanted to base the law of the United States in common law, and those who wanted it based in codified law. The proponents of the movement had three goals, which can be characterized as procedural, jurisdictional, and aspirational. The movement achieved considerable success with the first two and was at least partially successful with the third. The procedural goal was to replace the elaborate, arcane, and madding system of special pleading with simple and uniform codified court procedures. The jurisdictional goal was an effort to merge the courts of equity with the courts of law, and the aspirational goal was the wholesale replacement of the common law with a comprehensive codified or civil law legal system.

In episode twenty-two, we will continue our examination of the early Supreme Court and the staggering impact of Chief Justice John Marshall on the Constitutional development of the early Republic. Most of the cases discussed in the episode were decided between 1810 – 1823, the most productive period in Supreme Court history, during this time Marshall and his fellow justices, were at the height of their intellectual and persuasive powers. Cases discussed include: Fletcher v Peck; United States v. Hudson and Goodwin; Martin v. Hunter’s Lessee; United States v. Coolidge;  McCulloch v. Maryland; Trustees of Dartmouth College v. Woodard,  and Gibbons v. Ogden

In episode twenty-one we will discuss the early years of the United States Supreme Court and the most influential Chief Justice in its history, John Marshall. We will examine in detail what is considered the most famous case in American legal history, Marbury v. Madison (1803). We will also explore the origins of judicial review, the power of the court to determine if a statute, case, or treaty comports with the Constitution. We will end with an examination of how Marshall and the United States Supreme Court were able influence nearly every important political issue of the first half of the nineteenth century.

In Episode twenty, we will take a close look at the creation and substance of the first ten Amendments of the Constitution of the United States; The Bill of Rights. We will also discuss the three distinct eras of Constitutional growth and the strange story of the twenty-seventh Amendment.

In episode nineteen, we will examine the fight and the procedures utilized for the ratification of the Constitution of the United States. Often treated by historians as little more than a postscript in the process, it did in fact represent, in itself,  a great epoch in American political thought and development. The debate and votes which lasted a bit less than a year were thorough, egalitarian, passionate, thoughtful, and non-violent. In addition to ratification it also planted the seeds for the first political parties.

In  episode eighteen, we will deal with what would prove to be the most contentious issue of the summer proportional representation, discuss some the lessor known contributors to the final form of the Constitution, we will also examine the work of the so called “Committee of Detail” a little discussed but an incredibly influential body on the final form of the Constitution and last the election and power of the executive branch.

In episode seventeen we will continue with our fascinating discussion on Federal Indian Law with one of the most distinguished scholars in the field Professor Matthew L.M. Fletcher. In this wide-ranging interview examining Federal Indian Law from the mid-nineteenth century to the present day, we will cover the 1846 case of United States v. Rogers, the Treaty Era, the Removal Era, the Allotment Era and the 1903 case of Lone Wolf v. Hitchcock. In addition, we will examine the federal government’s efforts to assimilate Indian children, and the 1887 Dawes Act, the Indian New Deal, the Termination Era, the Era of Self-determination and last the 1978 Indian Child Welfare Act. Matthew L.M. Fletcher is the Harry Burns Hutchins Collegiate Professor of Law at the University of Michigan School of Law, and is a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians. He has also published numerous casebooks and treatises on Federal Indian Law and is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk, http://turtletalk.wordpress.com/.