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Dead Constitution See other Dead Constitution Articles Title: The Self-Defense Cases: How the United States Supreme Court Confronted a Hanging Judge in the Nineteenth Century and Taught Some Lessons for Jurisprudence in the Twenty-First The Self-Defense Cases: How the United States Supreme Court Confronted a Hanging Judge in the Nineteenth Century and Taught Some Lessons for Jurisprudence in the Twenty-First David B. Kopel [FNa1] 27 American Journal of Criminal Law 293 (2000). More by Kopel on the Second Amendment in the 19th century. 293 Copyright (c) 2000 University of Texas School of Law; David B. Kopel Table of Contents *294 I. Introduction Until the 1960s, the 1893-96 period was the Supreme Court's greatest period of activism against capital sentences. The Self-Defense Cases raise the issues that are still important as our judiciary enters the Twenty-First Century: accusations that appellate judges who reverse capital convictions are "soft on crime" and use "technicalities" to mask their personal opposition to the death penalty, the limits of how far appellate judges can go in restraining a zealous trial judge, whether ethnic minorities or uneducated people can receive a fair trial or a fair appeal, and the scope of the right to use deadly force for protection. An additional issue is whether *295 narrowing the right of self-defense is an advance for civilization or an assault on civil liberty. As we wrestle with all of these issues today, it would be wise for us to study how an earlier generation of judges dealt with these questions. Today, the Supreme Court of 1893-96 is remembered principally for their unprincipled political decision in Plessy v. Ferguson, [FN2] which claimed that state-imposed racial segregation was not intended to be insulting to blacks. [FN3] It may be startling then, to modern readers, to discover a string of cases in which the Court stood up again and again for the rights of blacks, American Indians, and other outsiders. What made the Court so energetic in its desire to vindicate the rights of certain criminal defendants? Do the Court's decisions from that era offer any guidance for modern judges who confront issues in capital cases very similar to what the 1893-96 Court faced? The Self-Defense Cases have received almost no scholarly attention, even from specialists in the Supreme Court's historical treatment of death penalty or criminal law. Chief Justice Rehnquist's tribute essay on Judge Parker criticizes the Supreme Court for reversing Parker so often on "legal technicalities," [FN4] but the essay does not address the particular issues in the Self-Defense Cases. The most recent biographies of Chief Justice Fuller [FN5] and Justice Harlan [FN6] ignore the cases, while an earlier Harlan biography devotes only two pages to all of the Court's criminal law work for this period. [FN7] A biography of Justice David Brewer provides a similarly brusque treatment, [FN8] and none of the biographies examine the Self-Defense Cases apart from the rest of the Court's criminal jurisprudence. This article aims to bring some needed attention to the Self-Defense Cases, and to use them to develop some lessons for modern jurisprudence. Part II of this article details the jurisdictional developments that, for the first time in the Supreme Court's history, suddenly forced the justices to begin reviewing ordinary capital convictions. Part III examines each of the Self-Defense Cases from the 1890s, in turn, as well as a 1921 case, Brown v. United States, [FN9] that resolved one issue on which the Self-Defense Cases had created some ambiguity. Responding to Chief Justice Rehnquist's article praising Judge Parker, Part IV offers some suggestions for what the Self- Defense Cases teach about good judging and about how to think about judges. Poster Comment: Lots of good info further along here for those of you who have a knack for legal issues. Post Comment Private Reply Ignore Thread
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