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E Pluribus Unum
Nineteenth-Century American Literature and the Constitutional Paradox
Harris, W. C.
University of Iowa Press, 2005
“Out of many, one.” But how do the many become one without sacrificing difference or autonomy? This problem was critical to both identity formation and state formation in late 18th- and 19th-century America. The premise of this book is that American writers of the time came to view the resolution of this central philosophical problem as no longer the exclusive province of legislative or judicial documents but capable of being addressed by literary texts as well.

The project of E Pluribus Unum is twofold. Its first and underlying concern is the general philosophic problem of the one and the many as it came to be understood at the time. W. C. Harris supplies a detailed account of the genealogy of the concept, exploring both its applications and its paradoxes as a basis for state and identity formation.

Harris then considers the perilous integration of the one and the many as a motive in the major literary accomplishments of 19th-century U.S. writers. Drawing upon critical as well as historical resources and upon contexts as diverse as cosmology, epistemology, poetics, politics, and Bible translation, he discusses attempts by Poe, Whitman, Melville, and William James to resolve the problems of social construction caused by the paradox of e pluribus unum by writing literary and philosophical texts that supplement the nation’s political founding documents.

Poe (Eureka), Whitman (Leaves of Grass), Melville (Billy Budd), and William James (The Varieties of Religious Experience) provide their own distinct, sometimes contradictory resolutions to the conflicting demands of diversity and unity, equality and hierarchy. Each of these texts understands literary and philosophical writing as having the potential to transform-conceptually or actually-the construction of social order.

This work will be of great interest to literary and constitutional scholars.
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The Effect of an Unconstitutional Statute
Oliver P. Field
University of Minnesota Press, 1935

The Effect of an Unconstitutional Statute was first published in 1935. Minnesota Archive Editions uses digital technology to make long-unavailable books once again accessible, and are published unaltered from the original University of Minnesota Press editions.

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Ellery's Protest
How One Young Man Defied Tradition and Sparked the Battle over School Prayer
Stephen D. Solomon
University of Michigan Press, 2010

“Solomon’s fascinating and sweeping history of the legal fight over mandatory school prayers is compelling, judicious, and elegantly written. Fabulous!”

—David Rudenstine, Dean, Benjamin N. Cardozo School of Law, Yeshiva University

“Stephen Solomon’s Ellery’s Protest provides a brilliant analysis of a major Supreme Court decision that redefined the relationship between church and state almost a half century ago. This study goes well beyond simply offering a gripping account of the course of litigation that brought before the Justices the contentious issue of prayer and Bible reading in public schools, though the thoroughness of that account would merit careful reading by itself. Especially impressive is the author’s deep probing of hitherto neglected sources, and invaluable primary material including extensive direct contact with the plaintiff, the ‘Ellery’ of the book’s title. Finally, and perhaps most impressive, is Solomon’s careful placement of the issue and the case in a far broader context that is as critical to national life and policy today as it was four and a half decades ago when the high Court first tackled these questions.”

—Robert O’Neil, Professor of Law, University of Virginia

Great legal decisions often result from the heroic actions of average citizens. Ellery’s Protest is the story of how one student’s objection to mandatory school prayer and Bible reading led to one of the most controversial court cases of the twentieth century—and a decision that still reverberates in the battle over the role of religion in public life.

Abington School District v. Schempp began its journey through the nation’s courts in 1956, when sixteen-year-old Ellery Schempp protested his public school’s compulsory prayer and Bible-reading period by reading silently from the Koran. Ejected from class for his actions, Schempp sued the school district. The Supreme Court’s decision in his favor was one of the most important rulings on religious freedom in our nation’s history. It prompted a conservative backlash that continues to this day, in the skirmishes over school prayer, the teaching of creationism and intelligent design, and the recitation of the Pledge of Allegiance with the phrase “under God.”

Author Stephen D. Solomon tells the fascinating personal and legal drama of the Schempp case: the family’s struggle against the ugly reactions of neighbors, and the impassioned courtroom clashes as brilliant lawyers on both sides argued about the meaning of religious freedom. But Schempp was not the only case challenging religious exercises in the schools at the time, and Ellery’s Protest describes the race to the Supreme Court among the attorneys for four such cases, including one involving the colorful atheist Madalyn Murray.

Solomon also explores the political, cultural, and religious roots of the controversy. Contrary to popular belief, liberal justices did not kick God out of the public schools. Bitter conflict over school Bible reading had long divided Protestants and Catholics in the United States. Eventually, it was the American people themselves who removed most religious exercises from public education as a more religiously diverse nation chose tolerance over sectarianism. Ellery’s Protest offers a vivid account of the case that embodied this change, and a reminder that conservative justices of the 1950s and 60s not only signed on to the Schempp decision, but strongly endorsed the separation of church and state.

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Eternally Vigilant
Free Speech in the Modern Era
Edited by Lee C. Bollinger and Geoffrey R. Stone
University of Chicago Press, 2001
While freedom of speech has been guaranteed us for centuries, the First Amendment as we know it today is largely a creation of the past eighty years. Eternally Vigilant brings together a group of distinguished legal scholars to reflect boldly on its past, its present shape, and what forms our understanding of it might take in the future. The result is a unique volume spanning the entire spectrum of First Amendment issues, from its philosophical underpinnings to specific issues like campaign regulation, obscenity, and the new media.

"With group efforts, such as this collection of essays, it is almost inevitable that there will be a couple—and often several—duds among the bunch, or at least a dismaying repetition of ideas. Such is not the case here. . . . Whether one agrees with a given author or not (and it is possible to do both with any of the essays), each has something to add. Overall, Eternally Vigilant is a thoughtful and thought-provoking book, consistently intelligent and, at times, brilliant."—Richard J. Mollot, New York Law Journal

Contributors:

Lillian R. BeVier
Vincent Blasi
Lee C. Bollinger
Stanley Fish
Owen M. Fiss
R. Kent Greenawalt
Richard A. Posner
Robert C. Post
Frederick Schauer
Geoffrey R. Stone
David A. Strauss
Cass R. Sunstein
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The Evangelical Origins of the Living Constitution
John W. Compton
Harvard University Press, 2014

The New Deal is often said to represent a sea change in American constitutional history, overturning a century of precedent to permit an expanded federal government, increased regulation of the economy, and eroded property protections. John Compton offers a surprising revision of this familiar narrative, showing that nineteenth-century evangelical Protestants, not New Deal reformers, paved the way for the most important constitutional developments of the twentieth century.

Following the great religious revivals of the early 1800s, American evangelicals embarked on a crusade to eradicate immorality from national life by destroying the property that made it possible. Their cause represented a direct challenge to founding-era legal protections of sinful practices such as slavery, lottery gambling, and buying and selling liquor. Although evangelicals urged the judiciary to bend the rules of constitutional adjudication on behalf of moral reform, antebellum judges usually resisted their overtures. But after the Civil War, American jurists increasingly acquiesced in the destruction of property on moral grounds.

In the early twentieth century, Oliver Wendell Holmes and other critics of laissez-faire constitutionalism used the judiciary’s acceptance of evangelical moral values to demonstrate that conceptions of property rights and federalism were fluid, socially constructed, and subject to modification by democratic majorities. The result was a progressive constitutional regime—rooted in evangelical Protestantism—that would hold sway for the rest of the twentieth century.

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Evidence of the Law
Proving Legal Claims
Gary Lawson
University of Chicago Press, 2017
How does one prove the law? If your neighbor breaks your window, the law regulates how you can show your claim to be true or false; but how do you prove that in breaking your window your neighbor has broken the law? American jurisprudence devotes an elaborate body of doctrine—and an equally elaborate body of accompanying scholarly commentary—to worrying about how to prove facts. It establishes rules for the admissibility of evidence, creates varying standards of proof, and assigns burdens of proof that determine who wins or loses when the facts are unclear. But the law is shockingly inexplicit when addressing these issues with respect to the proof of legal claims. Indeed, the entire language of evidentiary proof, so sophisticated when it comes to questions of fact, is largely absent from the American legal system with respect to questions of law.

As Gary Lawson shows, legal claims are inherently objects of proof, and whether or not the law acknowledges the point openly, proof of legal claims is just a special case of the more general norms governing proof of any claim. As a result, similar principles of evidentiary admissibility, standards of proof, and burdens of proof operate, and must operate, in the background of claims about the law. This book brings these evidentiary principles for proving law out of the shadows so that they can be analyzed, clarified, and discussed. Viewing legal problems through this lens of proof illuminates debates about everything from constitutional interpretation to the role of stipulations in litigation. Rather than prescribe resolutions to any of those debates, Evidence of the Law instead provides a set of tools that can be used to make those debates more fruitful, whatever one’s substantive views may be. As lawyers, judges, and legal subjects confront uncertainty about what the law is, they can, should, and must, Lawson argues, be guided by the same kinds of abstract considerations, structures, and doctrines long used to make determinations about questions of fact.
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Experimentalist Constitutions
Subnational Policy Innovations in China, India, and the United States
Yueduan Wang
Harvard University Press
One of the most commonly cited virtues of American federalism is its “laboratories of democracy”—the notion that decentralization and political competition encourage states to become testing grounds for novel social policies and ideas. In Experimentalist Constitutions, the first book that systematically compares subnational experimentalism in different countries, Yueduan Wang argues that the idea of federal laboratories is not exclusive to the American system; instead, similar concepts can be applied to constitutions with different center-local structures and levels of political competition. Using case studies from China, India, and the United States, the book illustrates that these vastly different polities have instituted their own mechanisms of subnational experimentalism based on the interactions between each country’s constitutional system and partisan/factional dynamics. In this study, Wang compares and contrasts these three versions of policy laboratories and comments on their pros and cons, thus contributing to the discussion of these great powers’ competing models of development.
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