Due

Sorry that I didn't post yesterday. It was even a day off from work work. I was working, though, even somewhat busy writing an encyclopedia entry on "the Fuller Court" (1888-1910), which is actually a tricky task. Melville Weston Fuller was Chief Justice for twenty-two years (longer than Rehnquist, but not as long as Marshall or Taney), at the end of the nineteenth and early twentieth century. This was the Lochner Court, the Plessy Court, the Court that limited the Sherman Anti-Trust Act in the E.C. Knight case, struck down the individual income tax in Pollock, and upheld injunctions against labor strikes in In re Debs--the last three, in one year, 1895. Other than property rights, this was not a Court particularly concerned with civil liberties, but this is an entry for a civil liberties encyclopedia. So I have to find some way to address the substantive due process issues, which are important for the history of civil liberties, but still address a handful of criminal procedure cases, First Amendment cases (two involving Mormons, yes!), and the Takings clause, as well as the issue of Incorporation.

The limit is 1,000 words. So, I guess you can see the tricky part. It's necessary to condense a lot of cases into sentences or clauses in sentences, which takes a great deal of care. And if youv'e ever read any nineteenth-century Court cases, you know that they are, um, difficult. The conventions used today had not been developed, so it's often difficult to say, in just a few words, why the Court ruled as it did.

As I said recently, I find this sort of thing engaging and even entertaining--both the challenge of condensing information into an entry of 1,000 words (I'm also writing two case entryies, which are only 250 words, which is also quite a challenge) and getting the history of 1888-1910 right. It was a very different time in so many ways.

But not in every way.

I recently read this, in Rotunda and Nowak's Treatise on Constitutional Law, sec. 15.7, and I thought that it was about right:

Despite claims to the contrary, there has never been a period of time wherein the Court did not actively enforce values which a majority of the Justices felt were essential in our society even though they had no specific textual basis on the Constitution.

More thoughts later.