Showing papers on "Constitution published in 1976"

6: Education; Its History and Historiography

Abstract: The truth of this poetry was illustrated by the zeal of settlers in founding schools, by subscription or through the constitution of a public taxing authority, frequently within days of their arrival. Schoolhouses sometimes preceded homes. Recently, this liberal imagery of "the school triumphant" has been deflated. No reader needs to be reminded of the severe, many-sided criticisms of contemporary public education. To challenge the old imagery, a new, radical one has been proposed: "the processes and apparatus of public education as epiphenomena of deeper forms of social oppression which it is the schools' func-

Politics and the Constitution: Is Money Speech?

Abstract: Lawyers are often surprised to learn that Alexander Meiklejohn, whose name is so often invoked in epic battles over the meaning of the First Amendment, was not a lawyer. He was a philosopher and educator of the first rank. Perhaps this background positioned him to discern, as he did with unique clarity, the central meaning of freedom of speech under our Constitution. In all events it made him especially sensitive to the Supreme Court's role as teacher to the nation. \"[T]he court,\" he wrote,

Constitution of Empire: The Case for the Colonists

Abstract: Let us suppose that in 1776 agreement had been reached between Britain and America on the proposition that the British Parliament had no authority over the colonies. Would twentieth-century scholarship see this as then-revolutionary doctrine? Would we say of it, as Maitland has of the Glorious Revolution, \"[W]e must treat the Revolution as a revolution.... We cannot work it into our constitutional law\"? 2 Let us suppose, further, that twentieth-century scholarship is virtually unanimous in holding that the Americans, who made that claim but failed to gain assent to it, were \"wrong on the law.\" Does that answer our first question? Were they so wrong, or so clearly wrong, that we should today have recognized the revolutionary nature of the claim even if it had been assented to, and abided by, from that day to this? If we suggest that in those circumstances we could and would work the doctrine of colonial immunity from parliamentary authority into \"our\" constitutional law, are we simply refusing to call a Revolution a revolution? Periodically the historical imagination is captured by this problem (though not always stated in precisely these terms) and a flurry of scholarly activity ensues. Tendentious assumptions speed to and fro; there is no umpire and the game goes on until called on account

Proceduralism and Bureaucracy: Due Process in the School Setting

Abstract: Some years ago, Professor Warren Seavey decried the unwillingness of schools to hedge their disciplinary regimes with even rudimentary procedural safeguards. "It is shocking," argued Seavey, "that the officials of a state educational institution . . . should not understand the elementary principles of fair play. It is equally shocking to find that a court supports them in denying to a student the protection given to a pickpocket."' During the past I5 years, judicial attitudes have changed substantially. Since the benchmark decision in Dixon v. Alabama State Board of Education,2 lower federal and state courts have generally reasoned that public school students are constitutionally entitled to a due process hearing before being expelled or suspended for an extended period.3 The Supreme Court addressed the issue in Goss v. Lopez,4 holding that a student facing suspension for io days or less is entitled to "notice of the charges against him, and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story."5 The extent to which Goss evinces a change in the way courts treat the requirements of procedural justice in the school setting was underscored by Justice Stewart in a subsequent criminal procedure case.6 While concurring in the result, Justice Stewart took offense at the majority's efforts to identify those procedural protections "that constitutionally need not be accorded incarcerated suspects awaiting trial"7 by turning Professor Seavey's lament on its head: "I see no need . . . for the Court to say that the Constitution extends less procedural protection to an imprisoned human being than is required to test the propriety of . . . the temporary suspension of a

The Typology of the Female as a Model for the Regenerate: Puritan Preaching, 1690-1730

Abstract: They admit that as nature has appointed such wide differences between the physical and moral constitution of man and woman, her manifest design was to give distinct employment to [her] various faculties; . . . The Americans have applied to the sexes the great principle of political economy which governs the manufactures of our age, by carefully dividing the duties of man from those of woman, in order that the great work of society may be better carried on.1

The Separation of School and State: Pierce Reconsidered

Abstract: Does the Constitution protect parents' right to pass their values along to their children? Stephen Arons argues that it does, basing his contention on the language and the history of Pierce v. Society of Sisters, the landmark decision that guaranteed private schools' right to do business. The author focuses upon the Court's statement that the state cannot "standardize" children and subsequent decisions and theoretical discussions that have cited Pierce in connection with First Amendment rights. Thus he suggests a First Amendment reading of Pierce, based upon the preservation of individual consciousness from government coercion. This principle would indicate that parents have a right of educational choice where the inculcation of values or beliefs is concerned. In the final part of this article, Arons explains why, if parents have such a right, the present scheme of compulsory attendance and school financing may be unconstitutional.

Women against prohibition

Abstract: Eighteenth Amendment to the Constitution, the national prohibition amendment. Frances Willard, Anna Gordon, Ella Boole, and the Women's Christian Temperance Union were as prominent as any man or male organization in the drive to dry up the United States.' During the 1920s, the amendment was widely assumed to be unrepealable, no matter how many people opposed it nor how frequently it was violated. Surely, the argument ran, the drys could always manage to block constitutional revision by holding on to at least one house in each of thirteen state legislatures,2 especially since American women (now fully enfranchised) could be counted upon for nearly unanimous support of prohibition. "There is as much chance of repealing the Eighteenth Amendment," said Senator Morris Sheppard, one of its authors, "as there is for a humming-bird to fly to the planet Mars with the Washington Monument tied to its tail."3 Yet the contemporary view that prohibition was impregnable and that women would stymie its repeal proved false. As they had at every stage of the prohibition battle, women played an extremely important role in its final phase, the overturning of the Eighteenth Amendment.

The Federal Republic

Abstract: This chapter discusses the political and social scenario in the Federal Republic of Germany. There has long been a connection between national aspirations and education in Germany. The defeat of Prussia at the hands o f Napoleon in 1806 was a humiliation aggravated by the subsequent fragmentation of Prussian territory. The idea of a central authority responsible for education throughout Germany was not seriously entertained until the establishment of the Weimar Republic after the First World War. Under the terms of the Constitution of 1919, a new cultural department was set up in the federal Ministry of the Interior, and a Commission was formed in which the representatives of both federal and Land administrations were to collaborate in working towards a national policy. The Federal Constitution of 1949 laid down guidelines in which certain important general principles were enshrined. The relevant articles are couched in fairly general terms that are customary in such documents.

Labor and the Constitution

Abstract: The long-standing opposition of the Australian Labor Party to the allegedly 'capitalistic' provisions of the Australian Constitution seems to be justified by the political crisis in 1975. The dismissal of the elected government by the Governor-General and the Senate members, through powers vested in them by the Constitution, emphasises that the Constitution has to be amended to protect the system of parliamentary democracy.

Personhood: The Right to Be Let Alone

Abstract: The great freedoms enumerated in the first ten amendments to the Constitution are known to most Americans by name--speech, press, religion, etc. But there is another great freedom that has not yet been christened. It is so vast that a single word does not encompass it. It is not an enumerated or "fundamental" freedom,' but to the average man, who may not wish to make a speech or print a newspaper, it may be the greatest freedom of them all. The right to be let alone is the only nonpolitical protection for that vast array of human activities which, considered separately, may seem trivial,2 but together make up what most individuals think of as freedom. I am thinking of little things, mostly taken for granted, such as the right to attend a football game, to refrain from attending a political rally, to wear a hat, or to ride a bicycle to work through city traffic. I am concerned for these freedoms because judicial consideration of them is presently unstructured. Because judges do not know how to treat them, there is a danger that they will be undervalued in the courts. 3 Although I do not think that these rights

“Made for Man's Delight”: Rousseau as Antifeminist

Abstract: A CHRONIC PROBLEM IN STUDYING Rousseau is the paradoxical nature of his works.' His Emile (176I) is no exception. Officially condemned but widely read, it was a boldly anticlerical and completely anti-institutional treatise on education. The book became an inspiration to both reformers and revolutionaries, but in one area it also disappointed many who embraced much of what Rousseau maintained in Emile as well as in his other critiques of society. Because Rousseau slighted the education of women, Emile became a special source of chagrin to contemporary feminists and to many of the women who avidly read Rousseau in the late eighteenth and early nineteenth centuries. In the fifth and final book of Emile, where he prescribes an education suitable to the woman in the protagonist's life, the radical Rousseau emerges as a reactionary, both by the standards of his own time as well as by our own. Emile was to be a critical, self-reliant citizen, entitled to an elaborate education and full equality with his peers. Sophie, on the other hand, was to be trained only as a wife to Emile and as a mother to his children. It was in total earnestness that Rousseau uttered one of his most misleading epigrams: "Woman is made for man's delight."2 Mary Wollstonecraft, one of the most vigorous proponents of equality of the sexes in law and education in the eighteenth century, expressed considerable admiration for Rousseau's equalitarianism in praising the achievements of the French Revolution in her Origin and Progress of the French Revolution (X 794). But two years before, when she wrote A Vindication of the Rights of Women, she had pleaded with the leaders of revolutionary France to ignore the views of Rousseau on the subject of women and to grant them full equality under the new constitution. She was very direct in attacking Rousseau's conception of female nature and women's rights: "I may be accused of arrogance; still I must declare, what I firmly believe, that all the writers who have written on the subject of female education and manners from Rousseau to Dr. Gregory

The Impact of Constitutions on Labour Law

Abstract: I propose to present to you some reflections on the impact which constitutions have had on the law governing the relations between management and labour In many parts of the world that impact has been very considerable, and continues to be soIt may be thought that an analysis of the role thus played by constitutions may perhaps be of absorbing interest to a comparative lawyer, but that it cannot have much practical significance in the United Kingdom People who argue that way are obviously inclined to agree with De Tocqueville who, when asked what the British Constitution was, said that it did not exist If the British Constitution does not exist, it may be argued, what is the good of giving in an English University an Inaugural Lecture about the role constitutions may play in the development of labour law?

Negotiable Instruments and the Federal Courts in Antebellum American Business

Abstract: That human needs and social realities are the roots of all systems of jurisprudence is nowhere more demonstrable than in the evolution of the law of business. Professor Freyer shows that neither the English common law of negotiable instruments nor the modifications made in it in the colonial era were adequate in the lusty, far-flung, and rapidly growing young nation that the Constitution of the United States created. Innovation, he reveals, promptly followed.

French Deputies and the Political System

Abstract: The Constitution of the Fifth Republic, the adoption of a single-member constituency electoral system with two ballots, and then the election of the President of the Republic by universal suffrage have greatly modified the French political system. A survey carried out during the winter of 1969-70 among 407 deputies suggests that the latter have not fully internalized the norms and practices of this new system. The deputies belonging to the majority readily accept the new institutions, but express reservations with regard to both the role of the political parties and "structured parliamentarianism," the main feature of which is the existence in Parliament of a coherent and disciplined majority resulting directly from parliamentary elections. The deputies of the Left are much more in favor of party discipline and coherent majorities than are their colleagues on the Right; however, many of them reject the new institutions.

Compulsory Military Service under the Constitution: The Original Understanding

Abstract: D id the Constitution's founders intend to permit compulsory military service? In i9i8 the United States Supreme Court answered with a ringing yes, arguing that "as the mind cannot conceive an army without the men to compose it, on the face of the Constitution the objection that it does not give the power to provide for such men would seem to be too frivolous for further notice." Fifty years later the Court saw no reason to alter this view.' In recent decades others have found the question less frivolous: constitutional debate, including discussion of the original understanding, occurred when Selective Service was established in I940, when Universal Military Training was proposed at the end of World War II, and when conscription came under attack in the final years of the Indochina War.2 Now the draft has ended, but the questions whether the Americans who framed and ratified the Constitution intended compulsory military service to exist under it, and, if so, in what form, remain historically interesting. The difficulty in answering them lies in avoiding anachronism and even more in interpreting some large silences on the part of the contestants of I787-I788. The evidence on a preliminary point is conclusive. Late eighteenthcentury Americans agreed, at least in theory, that government could lawfully

The Scope of the Fourth Amendment: Privacy and the Police Use of Spies, Secret Agents, and Informers

Abstract: This article has been produced under the Samuel Pool Weaver Constitutional Law Essay program, which is supported by trust funds given to the American Bar Foundation by the late Samuel Pool Weaver to encourage research and writing about the Constitution and its application to current problems. Under the terms of the program as presently structured, a constitutional law scholar is invited from time to time to write an essay on a subject agreed upon between the scholar and the American Bar Foundation. This is the first essay produced under the program's new format.

Local Control of Land Use: Profile of a Problem

Abstract: Mounting resource scarcities have stirred anew the controversy of local control over land use [Whyte 1969; Wengert 1972]. Yet lawmakers at the state and federal levels have found the present to be an inauspicious time for comprehensive land-use legislation.1 Regulatory efforts are met with grassroots resistance. Most often, the American penchant for home rule is explained politically. According to this view-the patrimony of Jefferson, Jackson and the populists-democracy pivots on the dispersed ownership of private property.2 Closely related is the legal interpretation of local control which harkens to the Fourteenth Amendment and Article V of the Constitution and is summarized in the "taking issue" [Bosselman and Callies 1973]. Still another account of the local control phenomenon is premised on the economic view of human nature, contained in collective action theory [c.f. Olson 1965; Warner and Havens 1967; Buchanan 1971]. Here rational self-interest preempts the public interest (e.g., centralized, comprehensive land-use planning) because the costs to the individual (forfeiture of certain property rights) exceed benefits derived from the collective action. Juxtaposed to the formidable legalpolitical traditions governing the ownership and control of property is a contemporary counterclaim. This is jointly derived from liberal political ideology

The Contemporary Debate over Centralization and Decentralization

Abstract: whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force."' This issue was being addressed in relation to the failures of confederation and the promise of federalist principles. The approach taken was "the general theory of a limited Constitution" in which a concurrent system of governments was organized to deal with overlapping communities of interest.2 Multiple jurisdictions would exist concurrently in a "compound republic."3 Each would carry its agencies to "the persons of the citizens," and stand in the need of no intermediate legislation.4 The ultimate authority for the

1776 A Year of Challenge--A World Transformed

Abstract: IT started meekly enough. On New Year's day, in London, Dr. Johnson's friend, the Presbyterian divine James Fordyce, D.D., delivered in the Monkwell St. chapel an elevating discourse in three parts entitled The Character and Conduct of the Female Sex, and the Other Advantages To Be Derived by Young Men from the Society of Virtuous Women. But ten days later, in Philadelphia, the first of a year-long series of blasting challenges to the structure and foundation of Anglo-American life and thought, ultimately of the entire western world, tore through the thin membrane of established civility and began a release of energies that would transform the world. Thomas Paine's Common Sense, published on January 10, is no simple argument for American independence. It is a cry of outrage and a searing indictment of the British political world, with its casually accepted hypocrisies and its revered constitutional myths that papered over the reality of what Paine saw as a brutal oligarchy crushing the very spirit of man. The pamphlet was a product not of the loosely structured and prosperous Philadelphia in which it appeared but of the marginal gentility of the semidispossessed of London, faced with destitution at the edge of squalor-a desperate world of violence and harassment from which Paine had personally escaped barely a year before his pamphlet appeared. He challenged not simply the British government for its violation of the law and spirit of the constitution but the constitution itself. It was, he said, a sanctified fraud, with its supposed balances, by which the mass of the people were hoodwinked into compliance with the rule of a gluttonous monarchy and an aristocracy soft with the rot of corruption. Within a month the pamphlet, reprinted by the thousands, circulated wildly through a population 3,000 miles removed from the source of Paine's passion yet scandalized and energized by its message.'

Control of Education

Abstract: This chapter discusses the control of education in Japan. The basic characteristics of the present system of control in Japanese education have been determined by the Constitution of Japan of 1946 and the Fundamental Law of Education of 1947. The Constitution established the principles of democratic government by which the popularly elected National Diet was vested with the power to set up policies relating to various spheres of national life, including education. Once the policies are set, the execution of them is handed to the Executive, the Prime Minister and his Ministers. Of these, the Minister of Education is responsible for national education, but under the principles of democratic government, his area of jurisdiction is defined and limited by laws. His executive power is also limited by the principle of local self-government set up by the Constitution in which the local population is given certain powers of self-determination in such matters with which they are directly concerned such as education.

The United States Constitution and the private college and university.

Abstract: THE UNITED STATES CONSTITUTION AND THE PRIVATE COLLEGE AND UNIVERSITY

The Documentary history of the first Federal elections, 1788-1790

Abstract: With this fourth volume, a history documenting the evolution of political processes in the United States is complete. The four volumes in The Documentary History of the First Federal Elections record the process by which the Confederation Congress and the thirteen original states implemented the electoral provisions of the federal Constitution of 1787. Contemporaries understood that the first federal Congress would flesh out the Constitution, and that the first federal elections were therefore an important step in the continuing struggle to shape, influence, and control the central government. The Constitution and the Confederation Congress allowed the states wide latitude in choosing Senators and in framing their laws for the election of the first presidential Electors and Representatives. This latitude encouraged experimentation and a lively public discussion about the entire electoral process. In all the volumes of The Documentary History of the First Federal Elections, the reader will find a wide range of sources from official proclamations to contemporary newspaper accounts, from biographical sketches of candidates to the election results. Maps showing electoral districts accompany the political developments in each state. Volume IV contains documents relating to elections in North Carolina and Rhode Island as well as to the election of the president and vice president.

Alexander M. Bickel and the Post-Realist Constitution

Abstract: This article examines the career and major writings of Alexander M. Bickel. It identifies the major themes that marked Bickel’s work, the fundamental principles that guided his thinking, and the changing social and political pressures that shaped his constitutional jurisprudence and then reshaped it over the years. It considers his efforts to incorporate and supercede the jurisprudential insights that legal realism highlighted, the importance of his close relationship with Justice Felix Frankfurter, his commitment to the early civil rights movement and Brown v. Board of Education, his subsequent transformation into a stinging critic of the later Warren Court, and finally his last efforts to develop a “conservative” constitutional and political philosophy. The article concludes that Bickel’s jurisprudence will remain provocative and insightful because it focused on the fundamental tensions inherent in the American constitutional structure and, thus, will remain relevant to the challenges that the nation’s constitutional government will confront in the future. Finally, it suggests that Bickel’s problematic but fascinating book, The Least Dangerous Branch, will stand as his most enduring monument as a constitutional theorist and that his brilliant collection, Unpublished Opinions of Mr. Justice Brandeis, will be recognized as his most incisive achievement as a constitutional historian.

Proposed amendments to the Constitution : a monograph on the resolutions introduced in Congress proposing amendments to the Constitution of the United States of America

Abstract: This volume was prepared by the author as a private project but was then printed as a government document under a House resolution. Sections describe each important phase of proposed Constitutional amendments, and such topics as abolishment of polygamy, women's suffrage, and prohibition are analyzed in detail.