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The "Original" Thirteenth Amendment and Titles of Nobility

Posted: 05 Apr 2011 08:15 AM PDT

Gideon M. Hart has published The 'Original' Thirteenth Amendment: The Misunderstood Titles of Nobility Amendment at 94 Marquette Law Review 311 (2010). Here is the abstract.



This Article provides one of the first truly comprehensive accounts of the "Titles of Nobility Amendment." The Titles of Nobility Amendment is one of only a handful of proposed amendments to the Constitution that were passed by Congress, but then not ratified by a sufficient number of states. The Amendment would have revoked the citizenship of any individual who accepted a "title of nobility or honor" or who accepted any "present, pension, office, or emolument" from any foreign state without congressional permission.

Despite its failure during the ratification process, the Amendment was printed in the 1815 version of the Statutes at Large as the Thirteenth Amendment, and the Amendment was widely believed to be part of the Constitution well into the late nineteenth century. In recent years, right-wing radicals have seized upon the Amendment, claiming that it was ratified and suppressed in a wide-ranging conspiracy and that it would bar lawyers from citizenship due to their use of the term "esquire." Although a handful of recent articles have addressed these patently false claims, these articles have also misunderstood the Amendment, dismissing it as the product of xenophobia and petty politics.

This Article sets out to address these misconceptions by closely studying the Amendment's historical context. In reality, the Amendment is an interesting hybrid of the rising fears during the decade preceding the War of 1812 that the United States would be recaptured and marginalized by European powers and of the long tradition of opposition to hereditary privilege in the United States. During the first decade of the nineteenth century, the United States was increasingly buffeted and threatened by the major European powers, particularly by Britain and France. Under great foreign pressure, individuals on both sides of the political spectrum became increasingly suspicious of each other's loyalties and both parties regularly accused the other of secret collusion and cooperation with foreign states. A response to this perceived foreign threat, the Amendment was intended to prevent the recruitment of American officials and citizens by foreign states with titles, such as the Legion of Honor, or other attractive presents and offices. Today these fears seem far-fetched, but at the time there was a very real worry that the American experiment would be rotted from the inside-out through secret conspiracy and subversion by European powers itching to reestablish their dominance in the Americas.
Although long misunderstood, the Amendment is an interesting piece of history and is one of the most intriguing near-Amendments to our Constitution.Download the article here.

The Case Method, the Scientific Method, and the Detective's Method

Posted: 05 Apr 2011 08:10 AM PDT

Simon Stern, University of Toronto Faculty of Law, has published Detecting Doctrines: The Case Method and the Detective Story in volume 23 of the Yale Journal of Law and the Humanities (2011). Here is the abstract.

Many scholars have compared legal judgments with detective stories, and have suggested that law professors should teach cases in a way that reflects the structure of detective fiction. This essay explores that analogy, arguing that detective fiction's asserted concern with the logical analysis of clues helps to show why exponents of legal doctrine would look to this genre as a model. Detective stories changed in the late nineteenth century, for the first time organizing their narrative structure around the use of clues, and hence claiming to promote logical reasoning in a way that allowed the reader to compete with the detective in solving the mystery. This explanation echoes the rationales offered by the advocates of the case method when it was first being endorsed around the same time. Law teaching changed similarly, moving from the methods of lecture and memorization to an approach that required students to navigate a narrative medium (the case) and to discover its essential components on their own. These two developments, in literature and law, stem from a common source - the emergence of new scientific methods aimed at tracing visible effects back to their hidden causes, exemplified by Charles Lyell's work in geology and Charles Darwin's work in evolution. When the early advocates of the case method talked about legal science, they emphasized scientific values such as coherence, clarity, and consistency, but an equally important aspect of the enterprise received much less rhetorical emphasis - namely, the method itself, which reflected the forms of scientific inquiry exemplified by Lyell and Darwin.



This essay explores those connections by considering various historical and structural analogies between the case method and the detective story. Part I takes up the changes in legal education associated with Christopher Columbus Langdell at Harvard, and discusses the intellectual roots of the case method, the justifications offered in its support, and the narrative tendencies that it relies on and promotes. Part II turns to the origins of the modern detective story near the end of the nineteenth century, and shows how the genre developed from the same scientific background as the case method. This section then examines in greater detail some of the ways in which case-method pedagogy may be said to cultivate the same habits as detective fiction, and concludes with some examples in which courts have expressly invoked the analogy to describe their own procedures or have crafted doctrines with the aid of propositions borrowed from detective stories. Part III considers some examples of detective fiction, pursuing the analogy further by asking why lawyers often figure as detectives in these stories. Finally, in a short conclusion, I discuss the analogy's implications by considering the emergence, around the turn of the nineteenth century, of a doctrinal approach that discovered underlying rights behind express constitutional guarantees.
Download the article from SSRN at the link.
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