The 39th Congress (1865-1867) and the 14th Amendment: Some Preliminary Perspectives

This article is a preliminary effort to tell the story of the people who brought the nation the 14th Amendment, the 39th Congress...I want to suggest that when someone creates the Hall of Fame of the Congresses we need to include the 39th Congress

The Impeachment and Removal of Tennessee Judge West Humphreys: John Bingham\u27s Prologue to the Johnson Impeachment Trial

At the beginning of the Civil War many individuals who held positions under the United States government submitted resignations which, in their minds, allowed them to assume positions with the so-called government of the Confederate States of America. One of the few individuals who did not do so, but nevertheless assumed a position under the Confederate States of America was U.S. District Judge West H. Humphreys. After the Confederacy was formed, he continued to hold court in the same courtroom but under the guise of a Confederate States Judge. This presented two problems for President Lincoln and the Unionists. First, without even the thin reed of resignation to attempt to protect him, this made Humphreys a visible and active traitor. Second, though one could argue that Humphreys had functionally vacated the U.S. District Court judgeship, others could make arguments that as long as Humphreys had not resigned there was no vacancy for President Lincoln to fill. Apparently with pressure from the Unionists of Tennessee, a decision was made to pursue impeachment proceedings against Judge Humphreys. The House voted for impeachment and elected as one of the managers future 14th Amendment author John A. Bingham. (R-OH.) He was the principle lawyer examining witnesses in the trial before the U.S. Senate. While it was a relatively short trial, it gave Bingham experience that no doubt proved useful later in the impeachment proceeding against Andrew Johnson. Judge Humphreys was ultimately convicted and removed from office, thus creating an opening for Unionist Connolly F. Trigg to be appointed judge in his place. Moreover, Judge Humphreys unintentionally earned a footnote in history as the first official who was not only convicted, but also permanently barred from holding any office under the United States government. This article tells the story of Congressman Bingham\u27s prosecution of the trial to a successful conclusion

Unintended Consequences of the Fourteenth Amendment and What They Tell us About its Interpretation

The Fourteenth Amendment has been compared to “second American Constitution.” Indeed, it is said that more litigation is based upon the Fourteenth Amendment or its implementing statutes than any other provision of the Constitution. As one would imagine for such an important charter of government, there is a substantial—and some might say overwhelming—body of scholarship on the “intent,” “meaning,” and “understanding” of the Fourteenth Amendment. Much of the literature, understandably, seeks to find out what the framers of the amendment or the ratifiers of the amendment “intended.” What did they want to accomplish by adopting this amendment? This article treats that issue as well, but begins with a different question: Does the amendment have consequences which were unintended by the framers? Over one and a quarter centuries ago, Justice Joseph Bradley answered that question in the affirmative: “It is possible that those who framed the article were not themselves aware of the far ranging character of its terms.” I suggest those unintended consequences include the effect of the Citizenship Clause on the force of the Fourteenth Amendment; the unintended impotency of the Privileges and Immunities Clause; the unintended neglect, for almost a century, of the Equal Protection Clause to offer protection to African Americans; the unintended effect upon the rights of corporations; and, finally, in what is more than a turn of the phrase, the possibility that the framers “intended” some of the unintended consequences of the amendment. The examination of those unintended consequences shed light upon the proper application of the Fourteenth Amendment to modern issues

Stone Soup: Thoughts on Balancing a Deanship and Family Life After Twelve Years as Dean

JUNE 30, 2007 marked the conclusion of my twelve-year service as Dean of the University of Akron School of Law. During that time the University of Toledo Law Review initiated its very successful “Leadership in Legal Education Symposium” and I benefited from reading articles in the prior symposia. It was inspiring to read about the efforts, thoughts, concerns, and accomplishments of fellow deans. Sometimes those essays gave me reassurance, raised my curiosity, provided new ideas, gave me an opportunity to think about old matters from a different perspective, and even prompted healthy disagreement. Having benefited from the contributions of other deans for so many years, this year I felt obligated to try to make some small contribution to the joint enterprise. My goal in writing this essay is to expand on an area of common interest to many deans: how to strike a balance with family life and work

McDonald v. Chicago, Self-Defense, the Right to Bear Arms, and the Future

In this article, Professor Richard L. Aynes, who was cited for his research by the majority in McDonald, delivers his critique on the opinion, the concurrence, and the dissent. Professor Aynes provides an in-depth analysis of Justice Thomas’ concurrence, which asserts the proper vehicle for incorporation to be the Fourteenth Amendment’s Privileges and Immunities Clause, as opposed to the traditional method employed by the court – the Due Process Clause. With contemporary legal scholarship in agreement with Justice Thomas, Professor Aynes asserts that just as the Privileges and Immunities Clause commanded the support of a ratifying nation, “it will yet command a majority of the Supreme Court.” Examining the dissenting opinions of Justice Stevens and Justice Breyer, Professor Aynes posits that that because their reasoning is devoid of any historical analysis of the original intent of the Fourteenth Amendment, the dissenters’ conclusion is fundamentally flawed. Lastly, Professor Aynes hypothesizes what McDonald will mean for the future of Second Amendment application against the states

Book Review: To Set The Record Straight By Judge John J. Sirica

One of the recent and more worthy accounts is that presented by Washington D.C. District Court Judge John Sirica in his To Set the Record Straight. Judge Sirica\u27s sixteen chapters generally cover five topics: 1) a prologue outlining his early experiences and how he attained his position of federal district judge; 2) the first Watergate break-in trial; 3) Judge Sirica\u27s attempt to break the silence of the cover-up following the initial proceeding; 4) the controversy over the production of the Presidential tapes; and, 5) the ultimate trials of Nixon administration officials for conspiracy to obstruct justice