The New copy of this book will include any supplemental materials advertised. Please check the title of the book to determine if it should include any access cards, study guides, lab manuals, CDs, etc.
The Used and Rental copies of this book are not guaranteed to include any supplemental materials. Typically, only the book itself is included. This is true even if the title states it includes any access cards, study guides, lab manuals, CDs, etc.
This highly acclaimed text provides a comprehensive selection of the most important documents in the field, which integrates the history of public and private law from America's colonial origins to the present. Devoting special attention to the interaction of social and legal change, it shows how legal ideas developed in tandem with specific historical events and reveals a rich legal culture unique to America. The book also deals with state and federal courts and looks at the relationship between the development of American society, politics, and economy, and how it relates to the evolution of American law.
Kermit L. Hall (1944-2006) was President of the University at Albany, State University of New York.
Paul Finkelman is President William McKinley Distinguished Professor of Law and Public Policy and Senior Fellow in the Government Law Center at Albany Law School.
James W. Ely, Jr., is Milton R. Underwood Professor of Law, Emeritus, and Professor of History, Emeritus, at Vanderbilt University.
Table of Contents
Chapter 1: Law in the Morning of America: The Beginnings of American Law to 1760
THE ENGLISH HERITAGE AND MAGNA CHARTA Magna Charta (1215) Note: Due Process and the Law of the Land Note: The Reformation and Tudor England THE VIRGINIA COLONY Dale's Laws (1611) THE BEGINNINGS OF CONSTITUTIONALISM IN AMERICA The Mayflower Compact (1620) John Winthrop, "A Model of Christian Charity" (1629) Note: Roger Williams and Religious Liberty Roger Williams, "The Bloudy Tenent of Persecution for Cause of Conscience" (1644) Roger Williams to the Town of Providence (1655) The Laws and Liberties of Massachusetts (1648) The Rhode Island Patent (1643) The Maryland Toleration Act (1649) Note: England's Civil War THE POST-RESTORATION COLONIAL GOVERNMENTS The Fundamental Constitutions of Carolina (1669) William Penn, First Frame of Government (1682) The New-York Charter of Libertyes (1683) THE GLORIOUS REVOLUTION Note: The Case of the Seven Bishops (1688) The English Bill of Rights (1689) John Locke, "Second Treatise of Civil Government" (1690) THE SOURCES OF LAW IN AMERICA Note: Reception of the Common Law William Blackstone on Reception (1765) Giddings v. Brown (1657) LAW AND COLONIAL SOCIETY Morality and Colonial Law "A Horrible Case of Beastiality," Plymouth Colony (1642) Marriage, Women, and the Family William Blackstone on Women in the Eyes of the Law (1765) Note: Women and the Law in the Colonial Era An Act Concerning Feme-Sole Traders (1718) Widows of New York and Taxes Children, Apprenticeship, Education Virginia Apprenticeship Statute (1646) Children's Education in Plymouth (1685) White Indentured Servitude In re Wm. Wootton and John Bradye (1640) South Carolina Servant Regulations (1761) Slavery In re John Punch (1640) In re Emanuel (1640) Re Mulatto (1656) Re Edward Mozingo (1672) Moore v. Light (1673) Against Runnaway Servants, Act XVI (1657-1658) How Long Servants Without Indentures Shall Serve, Act XVIII (1657-1658) An Act for the Dutch and All Other Strangers for Tradeing to This Place, Act XVI (1659-1660) Run-aways, Act CII (1661-1662) Negro Womens Children to Serve According to the Condition of the Mother, Act XII (1662) An Act Declaring that Baptisme of Slaves Doth Not Exempt Them from Bondage, Act II (1667) An Act About the Casuall Killing of Slaves, Act I (1669) An Act for Preventing Negro Insurrections, Act X (1680) The Germantown Protest Against Slavery (1688) South Carolina Slave Code (1740) The New York "Negro Plot" (1741) Colonial Welfare Systems An Act for the Relief of the Poor (1742) Note: Colonial Workfare Class Legislation, Sumptuary Laws, and Social Deference The Incident of the Roxbury Carters (1705) Law and the Colonial Economy The Laws and Liberties of Massachusetts (1648) The Laws of South Carolina (1734) Early Criminal Law The Salem Witch Trials (1692) Increase Mather, "Cases of Conscience Concerning Evil Spirits Personating Men" (1692) Cotton Mather, The Wonders of the Invisible World (1693) Politics and Criminal Law: Toward a New America The Zenger Trial (1735)
Chapter 2: Law in a Republican Revolution 1760-1815
THE AMERICAN REVOLUTION Jonathan Mayhew, "Unlimited Submission and Non-resistance to the Higher Powers" (1750) Note: Litigation and the Coming of the Revolution James Otis, "The Rights of the British Colonies" (1764) William Blackstone on the Imperial Constitution (1765) The Declaratory Act (1766) The Declaration and Resolves of the Continental Congress (1774) Tom Paine, Common Sense (1776) The Declaration of Independence (1776) REPUBLICAN STATE CONSTITUTIONALISM The Virginia Declaration of Rights (1776) The People the Best Governors (1776) Note: The Pennsylvania Constitution of 1776 Slavery and the New Nation Somerset v. Stewart (1772) The Pennsylvania Gradual Abolition Act (1780) Massachusetts Constitution of 1780 Commonwealth v. Jennison (1783) Virginia Manumission Act (1782) North Carolina Statute on Slave Murder (1791) Thomas Jefferson on Slavery, Notes on the State of Virginia (1784) Religion The Virginia Statute for Religious Freedom (1786) New Hampshire Constitution (1784) Revolution and Law Reform Thomas Jefferson, Notes on the State of Virginia (1784) REPUBLICAN NATIONAL CONSTITUTIONALISM The Articles of Confederation (1781) The Philadelphia Convention (1787) Debates Over Ratification of the Constitution Antifederalist Critique of the Constitution: Elbridge Gerry's Report on the Constitution as Printed in Massachusetts Centinel (1787) Federalist, Number 10 (1787) Federalist, Number 78 (1788) The Northwest Ordinance (1787) THE NEW REPUBLIC The Bill of Rights James Madison, "Property" (1792) EXECUTIVE POWER, CIVIL LIBERTIES, AND THE GOVERNMENT Hamilton Versus Madison on Presidential Power (1793) George Washington, Farewell Address (1796) The Sedition Act (1798) The Virginia and Kentucky Resolutions (1798-1799) Thomas Jefferson, First Inaugural Address (1801) COURTS, JUDGES, AND THE POWERS OF CONGRESS IN THE NEW NATION The Judiciary Act (1789) Jefferson v. Hamilton on the Bank of the United States (1791) Calder v. Bull (1798) Marbury v. Madison (1803)
Chapter 3: The Active State and the Mixed Economy 1812-1860
THE GOLDEN AGE OF AMERICAN LAW COMMERCE, LEGISLATIVE PROMOTION, AND LAW IN THE NEW REPUBLIC The New York Steamboat Monopoly and the Federal Commerce Power Livingston v. Van Ingen (1812) Note: The Mix of Economics, Politics, and Law Gibbons v. Ogden (1824) Note: The Effect of Gibbons The Second Bank of the United States McCulloch v. Maryland (1819) Note: A Court Opinion as Political Theory Andrew Jackson, Veto Message (1832) Note: Jacksonian Economics Note: A Federal Common Law Note: Canals, Internal Improvements, and the States State Constitutions and the Active State Ohio Constitution (1851) Mississippi Constitution (1817) Mississippi Constitution (1832) SUBSTANTIVE LAW AND ECONOMIC GROWTH The Advent of the Corporation Dartmouth College v. Woodward (1819) Note: The Politics of the Dartmouth College Case Charles River Bridge Company v. Warren Bridge Company (1837) Note: The Limited Liability of Stockholders Labor in an Industrializing Society Note: The Traditional Theory of Labor Conspiracy Commonwealth v. Hunt (1842) Note: The Fellow Servant Rule Farwell v. The Boston and Worcester Railroad Co. (1842) Note: Chief Justice Shaw and Labor Note: Fellow Servants and Slaves Property Van Ness v. Pacard (1829) Note: Eminent Domain Parham v. The Justices of Decatur County (1851) Barron v. Baltimore (1833) Joseph Angell, A Treatise on the Law of Watercourses (1854) Note: Water Rights and Industrial Development in the East Cary v. Daniels (1844) Note: Water Rights in the West Walter Prescott Webb, The Great Plains (1931) Irwin v. Phillips, et al. (1855) Note: Law and Westward Migration The Growth of Contract Law in the Nineteenth Century Seixas and Seixas v. Woods (1804) McFarland v. Newman (1839) Icar v. Suares (1835) Seymour v. Delancey, et al. (1824) Note: Contracts and the Emerging Speculative Economy Note: Contracts and the Federal Constitution The Evolution of Modern Tort Law Spencer v. Campbell (1845) Brown v. Kendall (1850) Note: The Emergence of Negligence Note: Toward the Future Ryan v. New York Central Railroad Co. (1866) Fent et al. v. Toledo, Peoria & Warsaw Railway Co. (1871) An Act to Establish the Responsibility of Railroad Corporations, Companies and Persons Owning or Operating Railroads, for Damages by Fires Communicated by Locomotive Engines (1887) Note: Wrongful Death and Tort Law
Chapter 4: Slavery, the Civil War, Reconstruction, and Segregation
SLAVERY AND STATE LAW Race and the Law of Negro Slavery Thomas R. R. Cobb, An Inquiry into the Law of Negro Slavery (1858) The Power of the Master over the Slave 222 State v. Mann (1829) Note: Harriet Beecher Stowe on Southern Judges Souther v. Commonwealth (1851) State v. Hoover (1839) Mitchell v. Wells (1859) Note: The Somerset Precedent in America SLAVERY AND THE CONSTITUTION The Problem of Fugitive Slaves Prigg v. Pennsylvania (1842) Note: Prigg and the Use of History Note: Prigg and Its Aftermath Note: Northern States'-Rights Arguments Slavery, the Territories, and Interstate Comity Dred Scott v. Sandford (1857) Note: The Reaction to Dred Scott Abraham Lincoln, "House Divided" Speech (1858) Note: The Next Dred Scott Decision SECESSION AND CONSTITUTIONAL THEORY South Carolina Ordinance of Nullification (1832) President Jackson's Proclamation Regarding Nullification (1832) NULLIFICATION AND SECESSION Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina (1860) Abraham Lincoln, First Inaugural Address (1861) THE CIVIL WAR AND EMANCIPATION Abraham Lincoln, The Emancipation Proclamation (1863) Note: The Effect of the Emancipation Proclamation Abraham Lincoln, Second Inaugural Address (1865) RECONSTRUCTION AND ITS AFTERMATH: POLITICAL CHANGE, BLACK FREEDOM, AND THE NADIR OF BLACK RIGHTS Political Change Articles of Impeachment of Andrew Johnson (1868) Note: The Courts and the Politics of Reconstruction Black Freedom Mississippi Black Codes (1865) An Act to Protect All Persons in the United States in Their Civil Rights, and Furnish Means of Their Vindication (1866) Note: The Civil Rights Act and the Fourteenth Amendment Note: Andrew Johnson's Veto of the 1866 Civil Rights Act Note: The Freedmen's Bureau Note: The Civil Rights Act of 1875 The End of Civil Rights The Slaughterhouse Cases (1873) Note: The Slaughterhouse Legacy Note: Civil Rights Cases (1883) Note: Responses to the Civil Rights Cases Race and Segregation in Nineteenth-Century Law and Society Roberts v. The City of Boston (1850) Note: Free Blacks and the Law Plessy v. Ferguson (1896) Note: Separate But Equal in the North Segregation on the Eve of a New Century (1898)
Chapter 5: Nineteenth-Century Law and Society 1800-1900
RACE Native Americans Cherokee Nation v. Georgia (1831) Note: The Federal Government and Native Americans Lone Wolf v. Hitchcock (1903) Asians Yick Wo v. Hopkins (1886) Note: The Chinese and Jim Crow Note: Chinese Exclusion United States v. Wong Kim Ark (1898) Note: Gentlemen's Agreement (1907) Oregon v. Charley Lee Quong, Ah Lee, and Lee Jong (1879) Latinos and Hispanics California ex rel. M. M. Kimberly v. Pablo de la Guerra (1870) GENDER AND DOMESTIC RELATIONS The Rights of Women "The Seneca Falls Declaration of Sentiments" (1848) The New York Married Women's Property Acts (1848) Note: Married Women and the Law Bradwell v. Illinois (1873) Minor v. Happersett (1875) Note: The Case of United States v. Susan B. Anthony (1873) Marriage and Divorce Joel P. Bishop, "The Nature of Marriage and How Defined" (1881) Wightman v. Coates (1833) Reynolds v. United States (1879) Note: Divorce Waldron v. Waldron (1890) Birth Control and Abortion State v. Slagle (1880) Note: Abortion and the Quickening Doctrine People v. Sanger (1918) CRIME AND CRIMINAL JUSTICE Crime and Punishment Cesare Beccaria, On Crimes and Punishments (1764) Charles Loring Brace, "The Causes of Crime" (1880) Note: The Police and the Prison The Excuse of Crime State v. Felter (1868) Note: Insanity Tests Bill Bell v. The State (1885) Note: The South and Self-Defense Late-Nineteenth-Century Crime and Morality People v. Plath (1885) The Federal Government, Crime, and Morality Ex parte Jackson (1877) Note: Morality and Free Speech
Chapter 6: Lawyers and the Rise of the Regulatory State 1850-1920
THE LAWYER IN AMERICAN SOCIETY Alexis de Tocqueville on Lawyers and Judges (1835) LEGAL EDUCATION Christopher C. Langdell, A Selection of Cases on the Law of Contracts (1871) Note: Critics of Langdellian Assumptions LEGAL THEORY IN THE LATE NINETEENTH CENTURY Thomas M. Cooley, A Treatise on the Constitutional Limitations which Rest upon the Legislative Power of the States of the American Union (1868) Note: Social Tension in the 1890s Christopher G. Tiedemann, A Treatise on the Limitations of Police Power in the United States (1886) Oliver Wendell Holmes, Jr., The Common Law (1881) Oliver Wendell Holmes, Jr., "The Path of the Law" (1897) THE GROWTH OF ECONOMIC REGULATION Property Rights and Police Power David J. Brewer, "Protection to Private Property from Public Attack" (1891) STATE REGULATION AND THE PUBLIC INTEREST States and Labor Law New Jersey Child Labor Act (1851) Illinois Criminal Syndicalism Act (1887) New York Workers' Compensation Act (1910) Workers' Compensation and the Question of Causation Ives v. South Buffalo Railway Co. (1911) Eminent Domain Colorado Constitution (1876) Note: The Evolution of Takings Jurisprudence FEDERAL REGULATION AND THE PUBLIC INTEREST The Interstate Commerce Commission Interstate Commerce Act (1887) Note: Judicial Reaction to the Interstate Commerce Commission Trust-Busting: The Statutory Basis Sherman Anti-Trust Act (1890) Federal Commerce Power United States v. E. C. Knight & Co. (1895) Note: Anti-Trust Law in the Progressive Era Populist Platform Adopted at St. Louis (1892) Taxation of Income Joseph H. Choate, Arguments for Appellant in the Income Tax Cases (Pollock v. Farmers' Loan and Trust Co.) (1895) JUDICIAL REACTION TO THE REGULATORY STATE The Origins of Substantive Due Process Wynehamer v. The People (1856) Bond Repudiation and Judicial Review The Bradley Dissent in Slaughterhouse The Slaughterhouse Cases (1873) Reaffirmation of the Police Power Munn v. Illinois (1877) Note: Federal Judicial Review of State Rate Regulations Substantive Due Process in the State Courts In re Jacobs (1885) Note: Substantive Due Process and Corporations Note: The Labor Injunction Federal Police Power and Labor In re Debs (1895) Note: Labor and the Law Liberty of Contract Allgeyer v. Louisiana (1897) Liberty of Contract and Workplace Regulation Holden v. Hardy (1898) Lochner v. New York (1905) Muller v. Oregon (1908) Toward a Federal Police Power Champion v. Ames (1903) Note: The Growth of Federal Police Power Note: Child Labor
Chapter 7: Total War, Civil Liberties, and Civil Rights
INDIVIDUAL RIGHTS IN A CHANGING CULTURE Louis D. Brandeis and Samuel D. Warren, "The Right to Privacy" (1890) WORLD WAR I AND CIVIL LIBERTIES The Suppression of Dissent During World War I Paul Murphy, World War I and the Origins of Civil Liberties in the United States (1979) Censorship, Free Speech, and Opposition to World War I Schenck v. United States (1919) Note: Debs v. United States (1919) Abrams et al. v. United States (1919) Note: The Abrams Dissent RADICALS AND CIVIL LIBERTIES Note: Civil Liberties and Fourteenth Amendment Incorporation Whitney v. California (1927) WORLD WAR II AND LEGAL DEVELOPMENTS The Flag Salute Cases West Virginia State Board of Education v. Barnette (1943) The Japanese Internment Note: Executive Order-No. 9066 Hirabayashi v. United States (1943) Korematsu v. United States (1944) Note: Ex parte Endo (1944) Note: The Internment Cases a Generation Later CIVIL LIBERTIES AND CRIMINAL JUSTICE IN CRISIS TIMES The Emergence of Criminal Due Process Weeks v. United States (1914) Olmstead v. United States (1928) Note: Prohibition and the Law CRIME IN THE CITIES 452 Roscoe Pound and Felix Frankfurter, Criminal Justice in Cleveland (1922) CIVIL RIGHTS AND RACIAL JUSTICE Race and the Franchise Race and Education Missouri ex rel. Gaines v. Canada (1938) Note: Beyond Gaines Racial Justice and Criminal Law James Harmon Chadbourn, "Lynching and the Administration of Justice" (1933) Note: Lynching and Federal Law Note: Black Rights, Southern Justice, and the Supreme Court
Chapter 8: The Rise of Legal Liberalism, Economic Reform, and the New Deal 1900-1945 463
SOCIOLOGICAL JURISPRUDENCE, THE AMERICAN LAW INSTITUTE, AND LEGAL REALISM 465 Oliver Wendell Holmes, Jr., "Law and the Court" (1913) Note: Oliver Wendell Holmes, Jr., and Judging Louis D. Brandeis, "Brief for the Defendant in Error," Muller v. Oregon (1907) The American Law Institute Elihu Root, "Report of the Committee," American Law Institute (1923) Note: The American Law Institute and the Restatements Legal Realism Jerome Frank, Law and the Modern Mind (1936) Note: Legal Realism THE NEW DEAL AND THE RISE OF LEGAL LIBERALISM The State and Federal Legislative Response The Supreme Court and the New Deal Schechter v. United States (1935) United States v. Butler (1936) FDR'S Court-Packing Plan Franklin Roosevelt, "Fireside Chat on the 'Court-Packing' Bill" (1937) Note: The Fate of FDR's Court-Packing Plan The Retreat From Economic Substantive Due Process West Coast Hotel v. Parrish (1937) Note: The Decline of Substantive Due Process Ordered Liberty, Preferred Positions, and Selective Incorporation Palko v. Connecticut (1937) Note: Carolene Products and Preferred Positions Footnote 4: United States v. Carolene Products Co. (1938) THE LIMITS OF FEDERAL JUDICIAL POWER Note: The Fate of Erie
Chapter 9: Rights, Liberty, and Science in Modern America
CIVIL RIGHTS Race Brown v. Board of Education of Topeka, Kansas (1954) "Southern Declaration on Integration" (1956) Note: Race and the Constitution Martin Luther King, Jr., "Letter from Birmingham City Jail" (1963) Civil Rights Act of 1964 Affirmative Action Regents of the University of California v. Bakke (1978) Note: The Future of Affirmative Action in Education City of Richmond v. J. A. Croson Company (1989) Note: The Aftermath of Croson Gender Griswold v. Connecticut (1965) Note: The Debate in Griswold Roe v. Wade (1973) Note: The Future of Roe Johnson v. Transportation Agency, Santa Clara County (1987) Note: Affirmative Action and Sexual Harassment Sexual Orientation Romer v. Evans (1996) Same-Sex Marriages Baker v. State (1999) Vermont Civil Union Act (2000) Defense of Marriage Act Note: Transgender Persons and the Law CIVIL LIBERTIES Freedom of Speech and Press Dennis et al. v. United States (1951) Note: Free Speech and Internal Security New York Times v. Sullivan (1964) Note: Offensive Speech Religious Freedom and Separation of Church and State Engel v. Vitale (1962) Employment Division, Department of Human Resources of Oregon v. Smith (1990) Note: Religious Freedom Restoration Act of 1993 CRIMINAL JUSTICE Miranda v. Arizona (1966) Note: The Supreme Court and Criminal Justice Note: Surge in Incarceration SCIENCE AND LAW Definition of Death In re Quinlan (1976) Note: Right to Die Surrogate Parenting In re Baby M (1988) The Challenge of DNA Science and Environmental Law TVA v. Hill (1978) Note: The Fate of Hill Cyberspace Intel v. Hamidi (2003)
Chapter 10: Law and the Economy in Modern America
REGULATORY STATE Deregulation The Staggers Act (1980) The Contours of Environmental Regulation Howard Latin, "Ideal Versus Real Regulatory Efficiency: Implementation of Uniform Standards and 'Fine-Tuning' Regulatory Reforms" (1985) Bruce A. Ackerman and Richard B. Stewart, "Reforming Environmental Law" (1985) William J. Clinton, Executive Order-No. 12866 (1993) Anti-Trust Policy ECONOMIC ACTIVITY 58 Contract Williams v. Walker-Thomas Furniture Company (1965) Torts Greenman v. Yuba Power Products, Inc. (1962) Fassoulas v. Ramey (1984) Note: Legislative Reform of the Tort System BMW of North America, Inc. v. Gore (1996) Note: Beyond Gore Note: Tobacco Litigation Property Lionshead Lake, Inc. v. Wayne Tp. (1952) Note: Zoning Eminent Domain Kelo v. City of New London (2005) Note: Post-Kelo Developments Regulatory Takings Lucas v. South Carolina Coastal Council (1992) Residential Leases Javins v. First National Realty Corporation (1970) Entitlements and "New Property" NEW FEDERALISM United States v. Lopez (1995) Note: New Directions in Commerce Clause Jurisprudence Printz v. United States (1997)
Chapter 11: Law, Politics, and Terror
THE MODERN PRESIDENCY AND SEPARATION OF POWERS New York Times Company v. United States; United States v. Washington Post Company (1971) Note: The Modern Presidency United States v. Nixon (1974) Note: The Resignation of Richard Nixon THE IMPEACHMENT OF BILL CLINTON House Committee on the Judiciary, Resolutions of Impeachment Against William Jefferson Clinton, President of the United States, for High Crimes and Misdemeanors (1998) Note: The Senate Vote on President Clinton 651 POLITICAL QUESTIONS, THE PRESIDENTIAL ELECTION OF 2000, AND THE SUPREME COURT Bush v. Gore (2000) Note: The Supreme Court and the Political Process President-Elect George W. Bush Addresses the Nation (2000) TERROR, LIBERTY, AND THE PRESIDENCY Note: The USA PATRIOT Act of 2001 The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, H.R. 3162, Section-by-Section Analysis The USA PATRIOT ACT: For and Against The USA PATRIOT ACT: Preserving Life and Liberty (2004) American Civil Liberties Union, "The USA PATRIOT ACT and Government Actions That Threaten Our Civil Liberties" (2004) Newt Gingrich, "The Policies of War: Refocus the Mission" (2003) Zelman v. Simmons-Harris (2002) Note: Homeland Security Act Lakhdar Boumediene v. George W. Bush, President of the United States (2008)
Appendix: The Constitution of the United States Notes Sources and Credits Index of Cases