Category Archives: Legal History

Emoluments Clause: Constitution’s Least Litigated

EmolumentsArticle I, Section 9, Clause 8 of the United States Constitution (known as the Emoluments Clause) reads:

“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

University of St. Thomas School of Law Associate Professor of Law Robert J. Delahunty’s essay on the Heritage Guide to The Constitution is worth reading for an understanding of this obscure provision   Article VI of the Articles of Confederation was the source of the Constitution’s prohibition on federal titles of nobility and the so-called Emoluments Clause. The clause sought to shield the republican character of the United States against corrupting foreign influences.

The prohibition on federal titles of nobility—reinforced by the corresponding prohibition on state titles of nobility in Article I, Section 10, and more generally by the republican Guarantee Clause in Article IV, Section 4—was designed to underpin the republican character of the American government. In the ample sense James Madison gave the term in The Federalist No. 39, a republic was “a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during good behavior.”

Republicanism so understood was the ground of the constitutional edifice. The prohibition on titles of nobility buttressed the structure by precluding the possibility of an aristocracy, whether hereditary or personal, whose members would inevitably assert a right to occupy the leading positions in the state.

Further, the prohibition on titles complemented the prohibition in Article III, Section 3, on the “Corruption of Blood” worked by “Attainder[s] of Treason” (i.e., the prohibition on creating a disability in the posterity of an attained person upon claiming an inheritance as his heir, or as heir to his ancestor). Together these prohibitions ruled out the creation of certain caste-specific legal privileges or disabilities arising solely from the accident of birth.

In addition to upholding republicanism in a political sense, the prohibition on titles also pointed to a durable American social ideal. This is the ideal of equality; it is what David Ramsey, the eighteenth-century historian of the American Revolution, called the “life and soul” of republicanism. The particular conception of equality denied a place in American life for hereditary distinctions of caste—slavery being the most glaring exception. At the same time, however, it also allowed free play for the “diversity in the faculties of men,” the protection of which, as Madison insisted in The Federalist No. 10, was “the first object of government.” The republican system established by the Founders, in other words, envisaged a society in which distinctions flowed from the unequal uses that its members made of equal opportunities: a society led by a natural aristocracy based on talent, virtue, and accomplishment, not by an hereditary aristocracy based on birth. “Capacity, Spirit and Zeal in the Cause,” as John Adams said, would “supply the Place of Fortune, Family, and every other Consideration, which used to have Weight with Mankind.” Or as the Jeffersonian St. George Tucker put it in 1803: “A Franklin, or a Washington, need not the pageantry of honours, the glare of titles, nor the pre-eminence of station to distinguish them….Equality of rights…precludes not that distinction which superiority of virtue introduces among the citizens of a republic.”

Similarly, the Framers intended the Emoluments Clause to protect the republican character of American political institutions. “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.” The Federalist No. 22 (Alexander Hamilton). The delegates at the Constitutional Convention specifically designed the clause as an antidote to potentially corrupting foreign practices of a kind that the Framers had observed during the period of the Confederation. Louis XVI had the custom of presenting expensive gifts to departing ministers who had signed treaties with France, including American diplomats. In 1780, the King gave Arthur Lee a portrait of the King set in diamonds above a gold snuff box; and in 1785, he gave Benjamin Franklin a similar miniature portrait, also set in diamonds. Likewise, the King of Spain presented John Jay (during negotiations with Spain) with the gift of a horse. All these gifts were reported to Congress, which in each case accorded permission to the recipients to accept them. Wary, however, of the possibility that such gestures might unduly influence American officials in their dealings with foreign states, the Framers institutionalized the practice of requiring the consent of Congress before one could accept “any present, Emolument, Office, or Title, of any kind whatever, from…[a] foreign State.”

Like several other provisions of the Constitution, the Emoluments Clause also embodies the memory of the epochal constitutional struggles in seventeenth-century Britain between the forces of Parliament and the Stuart dynasty. St. George Tucker’s explanation of the clause noted that “in the reign of Charles the [S]econd of England, that prince, and almost all his officers of state were either actual pensioners of the court of France, or supposed to be under its influence, directly, or indirectly, from that cause. The reign of that monarch has been, accordingly, proverbially disgraceful to his memory.” As these remarks imply, the clause was directed not merely at American diplomats serving abroad, but more generally at officials throughout the federal government.

The Emoluments Clause has apparently never been litigated, but it has been interpreted and enforced through a long series of opinions of the Attorneys General and by less-frequent opinions of the Comptrollers General. Congress has also exercised its power of “Consent” under the clause by enacting the Foreign Gifts and Decorations Act, which authorizes federal employees to accept foreign governmental benefits of various kinds in specific circumstances.

Another fascinating read on the Emoluments Clause is the December 2016 Brookings Institute study titled The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump co-authored by Norman L. Eisen, Richard Painter, and Laurence H. Tribe.

Electoral College vs. National Popular Vote

Election Day 2016 is not the first where a candidate for president won the most electoral votes, thus winning the presidency, but failed to win the popular vote. The unique American system provides no direct election of President and Vice-President. Since 1789, Electors chose successful candidates for those seats. The process is directed by the legislature of each state, either by popular vote or some other selection process. On the first Monday after the second Wednesday in December (which occurs this year on December 19, 2016), the electors meet in their respective States to cast their votes for President and Vice President of the United States.  Article II, Section 1, clause 2 reads: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress”.

The Electoral College decides how the nation’s Chief Executive is chosen. It dates back to the Federalist Papers. See Federalist 68, The Mode of Electing the President by Alexander Hamilton dated March 14, 1788. The pro-slavery influences of the electoral college surrounded the debate on the mode of electing the president. James Wilson proposed to a direct election by the people, but gained no support and it was decided the president was to be elected by Congress. When the constitution was considered, Gouverneur Morris brought the debate back up and decided he too wanted the people to choose the president. James Madison agreed that election of the people at large is the best way to go about electing the president, but knew that the slave states would not be influential with such a system, and so he backed the electoral college.

Instances in the nation’s history when popular vote totals for president differed from the elector count are:

  • The 1824 election was a four-man race. The top two candidates were Andrew Jackson and John Quincy Adams who won despite losing both the popular vote and the electoral vote. Andrew Jackson won 151,271 popular votes (41.4%) to Adams’ 113,122 votes (30.9%), roughly 38,000 fewer popular votes than Jackson who also defeated Adams in the electoral vote by 99 to 84. Neither candidate reached the majority 131 electoral votes so the House of Representatives met to select Adams.
  • The highly contentious 1876 election showed Democratic New York governor Samuel Tilden winning the popular vote over Republican Ohio governor Rutherford B. Hayes with 4,284,020 (51%) to Hayes’s 4,036,572 (48%), a margin of less than 250,000.  The electoral vote was Tilden 184 (one short of a majority) and Hayes 165 (20 ballots short). The remaining electoral votes were in dispute over voter fraud, mostly in three Southern states with Reconstruction governments: Florida, Louisiana, and South Carolina. Congress set up a special electoral 15-member commission of congressmen and Supreme Court justices. Two days before inauguration, on an 8-7 party line vote, the commission gave the disputed electoral votes to Hayes, who won by one electoral vote.
  • In 1888, Benjamin Harrison won the presidency with 233 electoral votes to Grover Cleveland’s 168. Harrison lost the popular vote by more than 90,000 votes winning 5,443,892 (47.8%). Cleveland’s vote total was 5,534,488 (48.6%).
  • The 2000 contest between the Republican George W. Bush and the Democrat Al Gore saw the popular vote winner lose because of the electoral vote count. Gore got 50,999,897 (48.4%) compared to Bush who had 50,456,002 votes (47.9%). The election hinged on the close vote in Florida, which prompted a mandatory recount. Litigation reached the US Supreme Court which ruled on December 12, 2000 in the 5–4 decision Bush v. Gore, ending the recounts, effectively awarding Florida’s votes to Bush. Bush won the electoral vote, 271 to 266.
  • The 1800 election had no records of popular votes as electors were chosen by state legislatures. Thomas Jefferson won 73 electoral votes to John Adams who won 69. Jefferson’s margin of victory came from electoral votes created by counting slaves for purposes of representation, which led to a greater number of electors for each state. States that Jefferson carried had fewer voters. If the election were decided by popular votes, Adams would have won.

Calls fElectoralor reform of electoral reform are likely after this election as they were in earlier ones. See in the Brooklyn Law School Library, Electoral College Reform: Challenges and Possibilities by Gary Bugh who says the Electoral College system was last updated by the Twelfth Amendment in 1804, despite public opinion polls showing a majority of Americans are in favor of changing or outright abolishing it. The book has essays examining all aspects of the debate, including the reasons for reform, the issues surrounding a constitutional amendment, the effect of the Electoral College on political campaigns and the possibilities for extra-constitutional avenues to change. The authors consider both the Federalists’ vision of balanced representation and a more democratic and equality-based ideal. The volume explores the potential for changing a system that many contend is long overdue. After the 2000 election, Professor Paul Finkelman’s article The Proslavery Origins of the Electoral College was published at 23 Cardozo Law Review 1145 (2002). Another article worth reading is by S.M. Sheppard titled A Case for the Electoral College and for Its Faithless Elector, published in the 2015 Wisconsin Law Review Online.

To learn about the Reform the Electoral College movement so the electoral vote reflects the nationwide popular vote for President, see the website of the National Popular Vote.

National Park Service 100th Anniversary

On August 25, 1916, President Woodrow Wilson signed into law the Organic Act which Congress passed to create in the Department of the Interior the National Park Service. The aim of the law was “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”

NPSWhen the law was enacted, there were already 35 national monuments and parks including Yosemite National Park established in 1864 and Yellowstone National Park established in 1872. Today, the National Park Service has 140 national monuments and parks, 128 historical parks or sites, 25 battlefields or military sites, 19 preserves, 18 recreation areas, 10 seashores, four parkways, four lakeshores, and two reserves. The biggest park is Wrangell-St. Elias National Park and Preserve in Alaska established in 1980 containing 13.2 million acres. It is the same size as Yosemite, Yellowstone and the country of Switzerland combined. The smallest site is the Thaddeus Kosciuszko National Memorial in Philadelphia established in 1972 sitting on 0.02 acres. The highest point in the system is Denali (or Mount McKinley) at 20,320 feet. The lowest accessible point is Death Valley National Park, at 282 feet below sea level. The newest National Monument is Katahdin Woods and Waters in Maine which President Barack Obama designated this week for the 100th anniversary of the National Park Service. See NPR web page In Maine, Land From Burt’s Bees Co-Founder Is Declared A National Monument discussing the controversial designation of the woods as protected territory especially from locals concerned about federal oversight of lands that used to be central to the regional economy.

With an annual budget of $2.6 billion, the National Park Service has about 20,000 direct employees and supports 240,000 local jobs generating $27 billion for the U.S. economy. More than 307 million people visited Park Service locations in 2015 compared to 1920 when NPS sites were visited by 1 million people. Brooklyn does not have a national park but this week Brooklyn Bridge Park hosted a National Park Service celebrating the100th anniversary of its founding. Nearby sites such as the Statue of Liberty and Ellis Island are both part of the NPS. Other NPS locations in New York City include the African Burial Ground National Monument, the Lower East Side Tenement Museum, the Theodore Roosevelt Birthplace National Historic Site and Castle Clinton National Monument.

Brooklyn Law School Library users can explore OneSearch to find a large set of articles about the history of the National Park Service such as the National Parks: America’s BEST Idea? from Parks & Recreation Aug 2016, Vol. 51 Issue 8, page 44.

Israeli Court Rules on Kafka Papers

In a major victory for libraries and public access to great literature, the Israeli Supreme Court this week issued a ruling concluding an eight-year legal battle about ownership of the literary works and letters of Franz Kafka. The series of court cases between Israel and the heirs of Max Brod, executor of the estate of Prague-born writer Franz Kafka began in 2009. Kafka’s last will and testament transferred all of his manuscripts to Brod after his death in 1924. A March 2015 article The Betrayed(?) Wills of Kafka and Brod by Nili Cohen, 27 (1) Law & Literature 1 (available to Brooklyn Law School Library users through a subscription to the Taylor & Francis Online Journal Library) relates that Kafka in separate letters entrusted his manuscripts and works to Brod instructing him to burn them after his passing. Brod did not honor Kafka’s request and took the papers with him when he fled Czechoslovakia in 1939 and emigrated to Palestine. After the 1968 death of Brod, his will bequeathed the papers to his secretary Esther Hoffe with instructions to give them to the “Hebrew University of Jerusalem, the municipal library in Tel Aviv or another organization in Israel or abroad”. Instead Hoffe kept the papers and shared them with her two daughters and even began to sell them.  In 1988, Hoffe sold an original copy of Kafka’s The Trial for $2 million. The 2007 death of Hoffe, more than 80 years after Kafka’s death, touched off a lengthy court fight between Israel and Hoffe’s daughters who claimed the papers were given to their mother by Brod so she could dispose of them as she wanted.

The WSJ Law Blog reports that Hoffe’s daughters refused the Israeli government’s demands to hand over the documents. The case turned on questions of inheritance law and whether Hoffe was entitled to give instructions about Brod’s literary legacy in her will. “Max Brod did not want his property to be sold at the best price, but for them to find an appropriate place in a literary and cultural institution” Israel’s high court stated in its opinion in which it directed that the papers should belong to the National Library of Israel in Jerusalem.

The TrialBoth Kafka and Brod studied law in Prague’s Karl University and Kafka devoted much of his literary work to the law. His letters to Brod to destroy his manuscripts was not a binding legal document as they included neither the title “Will” nor a date, suggesting that Kafka intended to ask his friend to honor a moral, not a legal, obligation. Kafka’s uncertain attitude towards law is expressed in his greatest novel, The Trial, which he wrote from 1914 to 1915. The novel was published in 1925 after Kafka’s death. Years later, Orson Welles wrote a screenplay based on the novel and directed the 1962 masterpiece The Trial (Call No. PT2621.A26 T75 1998) which the BLS Library has in its video collection. The story centers on the main character, Josef K, who wakes up one morning to find the police in his room. They tell him that he is on trial but no one tells him what the charges are. His efforts to learn the details of the charges and to protest his innocence remain fruitless. As he tries to look behind the facade of the judicial system, he finds he has no way to escape his nightmare.

Sedition Act of 1798: Political Speech as Crime

July 14 is famous as Bastille Day in English-speaking countries. In France, the day is called La Fête Nationale (the National Holiday) and was originally called Fête de la Fédération (“federation feast”) to celebrate the first anniversary of the storming of the Bastille and the end of the French Revolution. The French celebrate the day each year, referring to it as Le Quatorze Juillet (the fourteenth of July). Like Independence Day in the United States, it is a national holiday in France. The day celebrates the fall of the Bastille when just under a thousand Parisians attacked the prison releasing its seven inmates. Like the 4th of July, it marks the beginning of republican democracy and the end of tyrannical rule. The French national anthem, La Marseillaise, which originates from the revolution, does not commemorate the storming of the Bastille. Rather it celebrates the three tenets of the republican national motto: “liberty, equality and fraternity”.

In United States history, July 14 is the date when one of the most egregious breaches of the U.S. Constitution was enacted by Congress, the Sedition Act of 1798. In direct violation of the Constitution’s guarantee of freedom of speech, the Sedition Act permitted the prosecution of individuals who voiced or printed what the government deemed to be malicious remarks about the president or government of the United States. The infamous Alien and Sedition Acts were four laws passed by the Federalist controlled Congress stemming from fears of the French revolution, specifically the Reign of Terror, and an undeclared naval war with France. The Federalists were fearful of revolutionary support growing in the United States among Irish and French immigrants and from Democratic-Republicans, sympathetic to the French cause, who wished to oust the Federalists from office. Fourteen Republicans, mainly journalists, were prosecuted, and some imprisoned, under the act. Among the prosecutions were the following:

  • James Thomson Callender, in his book “The Prospect Before Us” called the Adams administration a “continual tempest of malignant passions” and the President a “repulsive pedant, a gross hypocrite and an unprincipled oppressor”. He was indicted and convicted in 1800, fined $200 and sentenced to nine months in jail.
  • Matthew Lyon wrote an essay in the Vermont Journal accusing the administration of “ridiculous pomp, foolish adulation, and selfish avarice”. He was fined $1,000 and sentenced to four months in jail.
  • Benjamin Franklin Bache accused George Washington of incompetence and financial irregularities, and charged the “the blind, bald, crippled, toothless, querulous Adams” with nepotism and monarchical ambition in his newspaper “The Aurora”. He was arrested in 1798 but he died of yellow fever before trial.
  • David Brown set up a liberty pole in Dedham, Massachusetts with the words, “No Stamp Act, No Sedition Act, No Alien Bills, No Land Tax, downfall to the Tyrants of America; peace and retirement to the President; Long Live the Vice President”. He was arrested and tried, fined $480, and sentenced to eighteen months in prison.
  • Luther Baldwin of Newark, New Jersey, who, following the adjournment of Congress in July 1798, when President Adams and his wife were traveling through Newark past a local tavern, heard one of the patrons say, “There goes the President and they are firing at his ass.” Baldwin said “he did not care if they fired thro’ his ass.” He was arrested and later convicted of speaking seditious words tending to defame the President and Government of the United States. He was fined $150, assessed court costs and expenses, and sent to jail until he paid the fine and fees.

seditionReaders interested in this dark time in American history can Halperinlearn more by reviewing two titles recently added to the Brooklyn Law School Library collection. The first is Press and Speech Under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign against Dissent by Wendell Bird (Call No. KF9397.A3281798 B57 2016). The other is The Alien and Sedition Acts of 1798: Testing the Constitution by Terri Diane Halperin (Call No. KF9397.A3281798 H35 2016). Interestingly, the U.S. Supreme Court never heard a case to decide whether the Alien and Sedition Acts were constitutional. The Sedition Act expired on March 3, 1801, the last day of the first and only presidential term of John Adams.

Judicial Review and Alexander Hamilton

Independence Day 2016 marks the 240th anniversary of the Second Continental Congress’ adoption of the Declaration of Independence on July 4, 1776. This milestone in US history is observed by Americans, young and old, as a national holiday on the same calendar date each year. If July 4 is a Saturday, it is observed on Friday, July 3. If July 4 is a Sunday, it is observed on Monday, July 5. This year government offices and schools are closed on Monday, July 4. See 5 U.S. Code § 6103. The library at Brooklyn Law School has reduced hours on Monday and will be open from 9am to 5pm so law students can study for the bar exam scheduled at the end of July.

RutgersIn Constitutional Law courses law students at BLS and throughout the country learn that the decision by Chief Justice John Marshall in Marbury v. Madison, 5 U.S. 137 (1803) is arguably the most important case in American law. It was the first U.S. Supreme Court case to apply the principle of “judicial review”, the power of federal courts to void acts of Congress in conflict with the Constitution. However, a newly acquired title in the BLS Library collection, Rutgers v. Waddington: Alexander Hamilton, the End of the War for Independence, and the Origins of Judicial Review by historian Peter Charles Hoffer (Call No. KF228.R877 H64 2016) makes clear that Marbury was not the first court in the new American Republic that considered the argument that a legislative enactment in conflict with a state or federal constitutional provision is void. One of the first decisions to address the question was Rutgers v. Waddington, decided in the Mayor’s Court in the City of New York on August 7, 1786. The case is important to American constitutional law because defendants’ primary attorney who argued for an expansive notion of judicial power was Alexander Hamilton, who advocated for the principal of judicial review in Federalist Paper No. 78.

The case was presented on June 29, 1784 with Chief Justice James Duane presiding. The facts showed that Plaintiff Elizabeth Rutgers owned a large brewery and alehouse on the northern side of Maiden Lane near where Gold Street now enters it. The brewery extended from Smith (now William) Street on the west, to Queen (now Pearl) Street, on the east; and from Maiden Lane, on the south, to John Street on the north. It was one of the most notable features in what is now the Financial District.  Plaintiff was forced to abandon the brewery during the British occupation of New York City. Under the Trespass Act of 1783, which permitted patriots to sue loyalists for damages to property in occupied areas of the state, Rutgers demanded rent from Joshua Waddington who had been running the brewery since it was abandoned. Alexander Hamilton, attorney for the defense, argued that the Trespass Act violated the 1783 peace treaty ratified earlier by Congress. Chief Justice Duane delivered a split verdict awarding Rutgers rent only from the time before the British occupation. The case was ultimately settled by the two parties. Importantly the case set a precedent for Congress’s legal authority over the states. In his ruling, Chief Justice James Duane wrote that “no state in this union can alter or abridge, in a single point, the federal articles or the treaty.”

Brooklyn Law School’s Scholarship & Special Collections

brooklynworks

BrooklynWorks is the online repository of Brooklyn Law School, providing open access to scholarship produced by the law school and to other collections of law school materials. The repository is a service of the Brooklyn Law School Library. Current collections focus on faculty scholarship, the law school’s journals and library special collections.

Within the law Journals collection, you can browse or search issues of the Brooklyn Law Review, the Brooklyn Journal of International Law, the Journal of Law & Policy, and the Brooklyn Journal of Corporate, Financial, & Commercial Law.  Within the faculty scholarship collection, you can browse or search Brooklyn Law School’s faculty publications going back to 2010.

Within the Special Collections, you can browse the papers of David Trager from the 1986-1989 New York City Charter Revision Commissions.  Included in this historic collection are various drafts of the New York City Charter, meeting minutes and letters to the members of the commission.  The digitized documents were selected from materials he donated to the Brooklyn Law School Archives. To access the entire collection, you can contact the reference desk (refdesk@brooklaw.edu) and make an appointment to visit the archives.

Miranda v. Arizona: Fifty Years Later

ernestomiranda640On June 13, 1966 the United States Supreme Court handed down the decision in Ernesto Miranda v. the State of Arizona, 384 U.S. 436 (1966). This case was actually consolidated with three others: Westover v. United States, Vignera v. State of New York and California v. Stewart, however, this case has become known to be simply Miranda v. Arizona.

Ernesto Miranda was arrested in Phoenix, Arizona in March 1963 based on circumstantial evidence linking him to the kidnapping and rape of an eighteen year old woman named Mary Adams ten days prior to his actual arrest.  At the police station, after hours of interrogation, he signed a confession. During the interrogation Miranda was not told of his right to counsel.  During the trial the prosecutor entered his confession as evidence; Miranda’s attorney objected, stating that the confession was not truly voluntary and should be excluded. This objection was overruled and Miranda was convicted of rape and kidnapping at trial. The Arizona Supreme Court affirmed the trial court’s decision.

Miranda’s case and three other similar cases were appealed to the United States Supreme Court, with the Court handing down their decision fifty years ago this month.  The Miranda case has become famous because it establishes a defendant’s right to counsel and of the right against self-incrimination.  Judge Earl Warren wrote for the majority, in the 5-4 decision, that these rights were guaranteed by the Fifth and Sixth Amendments to the Constitution.

After the Supreme Court’s decision, the state of Arizona retried Miranda without the confession, but he was convicted on the strength of a witness and sentenced to 20 to 30 years in prison. He served eleven years and died in 1976, after being stabbed in a bar fight.

“Miranda Rights” have come to be known by the public through television shows and movies as the “right to remain silent” and “anything said can and will be used against in a court of law.” Hundreds of law review articles have been written about this case and a defendant’s “Miranda Rights.”  The library also has a number of books about the Miranda case, including the titles listed below:

Miranda: the Story of America’s Right to Remain Silent by Gary Stuart (2004).

The Miranda Debate:  Law, Justice, and Policing by Richard Leo (1998).

The Miranda Ruling: Its, Past, Present, and Future by Lawrence Wrightsman (2010).

Miranda Revisited by Frank Schmalleger (2001).

Court Ruling in Touro Synagogue Dispute

This week the NY Times published an intriguing article on the resolution of a four year legal battle over ownership of personal property, silver Torah ornaments called rimonim, used in worship services in the nation’s oldest existing synagogue, Touro Synagogue in Newport, RI.  Judge John J. McConnell, Jr of the US District Court for the District of Rhode Island issued a 106 page opinion in favor of Congregation Jeshuat Israel, worshippers at the 252-year-old Touro Synagogue in Newport who have been battling Shearith Israel in New York City for control of the temple and the right to sell a pair of historic ceremonial ornaments worth millions of dollars. The suite was originally filed in Rhode Island Superior Court, Newport County, in November 2012 and later removed to federal court. Judge McConnell’s opinion begins;

Bricks and mortar of a temple, and silver and gold of religious ornaments, may appear to be at the center of the dispute between the two parties in this case, but such a conclusion would be myopic. The central issue here is the legacy of some of the earliest Jewish settlers in North America, who desired to make Newport a permanent haven for public Jewish worship. Fidelity to their purpose guides the Court in resolving the matters now before it.

torah bellsTouro Synagogue was established in 1763. During and after the Revolutionary War, most of the Newport’s Jewish residents moved away, many of them to New York. By the 1820s, no Jews were left in Newport, and Congregation Shearith Israel became Touro’s trustee. The two congregations began to feud when the Touro congregation tried in 2012 to sell the bells made by a noted 18th-century silversmith, Myer Myers to the Museum of Fine Arts in Boston for $7.4 million to improve the synagogue’s fiscal health. The New York congregation protested and Congregation Jeshuat Israel filed the lawsuit. Since, the museum withdrew the offer leaving the dispute to be decided by the federal court.

Touro Synagogue has become a national historic site drawing visitors from all over the world every year. Its most famous visitor was the nation’s first president George Washington who in 1790, stopped at Touro. After his visit he sent the congregants a letter saying the government of the United States “gives to bigotry no sanction, to persecution no assistance.” It is considered an important pledge of the new nation’s commitment to religious liberty. A search of Brooklyn Law School Library’s ProQuest Congressional database, available to members of the BLS community, will lead to 107 H. Con. Res. 62 dated July 17, 2001. The title of the resolution is “Expressing the Sense of Congress That the George Washington Letter to Touro Synagogue in Newport, Rhode Island, Which Is on Display at the B’nai B’rith Klutznick National Jewish Museum in Washington, DC, Is One of the Most Significant Early Statements Buttressing the Nascent American Constitutional Guarantee of Religious Freedom”.

Chief Justice Earl Warren Biography

Today marks 125 years since the birth of Earl Warren, the 14th Chief Justice of the US Supreme Court, in Los Angeles, California. Warren’s tenure on the Court was from 1953 when President Dwight D. Eisenhower nominated him until his retirement in 1969. Earl Warren had enormous impact on the political and legal landscape of twentieth century America. In his long public service, Warren pursued a Progressive vision of ethical and effective government that brought moral integrity to the nation’s public policies, especially in the fields of racial relations, criminal justice, and freedom of marital association. Warren’s path-breaking approach to legal writing and his management of the responsibilities of the Office of Chief Justice encouraged public understanding of and support for the work of the Supreme Court.

A graduate of the University of California at Berkeley, he was elected district attorney of Alameda County in 1925 and continued to be reelected through 1938, when he was elected Attorney General of California. In 1942, Warren ran successfully for Governor of California as a Republican and was reelected in 1946 and 1950. He ran for Vice President of the United States in 1948 on the Republican ticket with Thomas Dewey, who lost to Harry Truman, the Democratic incumbent.

The Warren Court issued a host of notable decisions including decisions holding segregation policies in public schools (Brown v. Board of Education) and anti-miscegenation laws unconstitutional (Loving v. Virginia); ruling that the Constitution protects a general right to privacy (Griswold v. Connecticut); that states are bound by the decisions of the Supreme Court and cannot ignore them (Cooper v. Aaron); that public schools cannot have official prayer (Engel v. Vitale) or mandatory Bible readings (Abington School District v. Schempp); the scope of the doctrine of incorporation in state criminal matters (Mapp v. Ohio, Miranda v. Arizona) was dramatically increased; reading an equal protection clause into the Fifth Amendment (Bolling v. Sharpe); holding that the states may not apportion a chamber of their legislatures in the manner in which the United States Senate is apportioned (Reynolds v. Sims); and holding that the Constitution requires the states to provide defense attorneys to criminal defendants charged with serious offenses (Gideon v. Wainwright).

Warren wasWarren Chair of the Warren Commission on the Assassination of President Kennedy. Serious lapses in judgment and uncritical deference to authority regarding national security issues in the report have clouded his legacy. The Brooklyn Law School Library has in its collection Earl Warren and the Struggle for Justice by Paul Moke (Call # KF8745.W3 M65 2015), a highly readable biography that offers an updated and balanced appraisal of Warren’s leading social justice decisions and a liberal critique of his failings that provides new insights into Warren, the man, the jurist, and the leader.