BLS Library Blog

The US Congress, by Public Law 100-9, designated the month of March 1987, as “Women’s History Month”. This law requested the President to issue a proclamation calling on the American people to observe this month with appropriate activities. President Reagan then issued Presidential Proclamation 5619 proclaiming March 1987 as “Women’s History Month”. Since then, Presidential Proclamations have declared March as Women’s History Month.

Brooklyn Law School celebrates Women’s History Month by recognizing Amelia Dietrich Lewis, Class of 1924, as “one of the most tenacious lawyers the state of Arizona has ever seen.” She was a graduate of St. Lawrence University School of Law (now Brooklyn Law School). She exhibited her moxie early in her career, even before she was sworn in as an attorney. Although Lewis was scheduled to take the bar exam on June 24, 1924, she learned that the New York Bar prohibited candidates under the age of 21. In Lewis’s case, she was to turn 21 the very next day, on June 25. Facing this technicality, she filed suit against the Bar, arguing she would be 21 on the 24th because her birthday was actually the first day of her 22nd year.” She was successful in her suit and took the exam as planned on the 24th and passed. After practicing law in New York for 33 years, in 1957 following the death of her husband, she moved to Arizona. She took the bar examination in that state with just one other woman, Sandra Day O’Conner. There, she worked as a prosecutor for six years and then maintained a thriving solo practice, concentrating in elder law in Sun City. She was well into her eighties when she retired.

Lewis is best known for her involvement in the landmark 1967 Supreme Court case, In re Gault, 387 U.S. 1 (1967), which brought due process to juvenile courts across the nation. Her client, Gerald Gault, had been sentenced without legal counsel to an Arizona reformatory. He allegedly made an obscene phone call to a neighbor, was arrested by local police, and tried in a proceeding that did not require his accuser’s testimony. He was sentenced to six years in a juvenile “boot camp” for an offense that would have cost an adult only two months. Lewis assumed the role of co-counsel after Gault’s appeals at the lower level were exhausted. She was drawn to the case because she had raised three healthy sons and “wanted to give something back.” Ultimately, the defense of the boy prevailed, with the Court holding that he was entitled to the same constitutional safeguards as adults: a trial by jury, the right to legal counsel, the right to cross-examine witnesses, and the right to remain silent. Justice Fortas in his 8-1 majority opinion wrote: “Neither the 14th Amendment nor the Bill of Rights is for adults only. Under the Constitution, the condition of being a boy does not justify a kangaroo court.”

Lewis was recognized by the Arizona Republic as one of the legal greats of that state. In 1988, she received the first Amicus Award of the Association of Trial Lawyers of America, which honored her for pioneering the vital role of women in the legal profession. Upon her death in 1994, the Chief Justice of the Arizona Supreme Court commented: “She made history for the law in many ways. Her life and career epitomized the practice of law as it should be.”

The Brooklyn Law School Library has in its collection The Constitutional Rights of Children: In re Gault and Juvenile Justice by David S. Tanenhaus (Call No. KF228.G377 T36 2017). This new edition includes expanded coverage of the Roberts Court’s juvenile justice decisions including Miller v. Alabama (in which the Court held that mandatory sentences of life without the possibility of parole are unconstitutional for juvenile offenders) and explains how disregard for children’s constitutional rights led to the “Kids for Cash” scandal in Pennsylvania. Widely celebrated as the most important children’s rights case of the twentieth century, Gault affirmed that children have the same rights as adults and formally incorporated the Fourteenth Amendment’s due process protections into the administration of the nation’s juvenile courts.

The right of same-sex couples to marry triggered decades of intense conflict before the U.S. Supreme Court upheld it in the 2015 decision Obergefell v. Hodges. Some of the most divisive contests shaping the quest for marriage equality occurred within the ranks of LGBTQ advocates. In the Brooklyn Law School Library copy of the encyclopedia-like 441-page book Awakening: How Gays and Lesbians Brought Marriage Equality to America (Harvard University Press, April 2017), author Nathaniel Frank, internationally recognized authority on LGBTQ equality and public policy, tells the dramatic story of how an idea that once seemed unfathomable became a legal and moral right in just half a century.

Awakening begins in the 1950s, when millions of gays and lesbians were afraid to come out, let alone fight for equality. Across the social upheavals of the next two decades, a gay rights movement emerged with the rising awareness of the equal dignity of same-sex love. A corps of  lawyers soon began to focus on legal recognition for same-sex couples, if not yet on marriage itself. It was only after being pushed by a small set of committed lawyers and grassroots activists that established movement groups created a successful strategy to win marriage in the courts. Marriage equality proponents then had to win over members of their own LGBTQ community who declined to make marriage a priority, while seeking to rein in others who charged ahead heedless of their carefully laid plans. All the while, they had to fight against virulent anti-gay opponents and capture the American center by spreading the simple message that love is love, ultimately propelling the LGBTQ community immeasurably closer to justice.

See the YouTube video about the book.

The US Constitution was adopted 230 years ago, on September 17, 1787. Its words are as vital today as when the founders agrees that the Constitution would be sent to the Confederation Congress to start the ratification process with the states. It words are invoked daily in controversies over free speech, gun rights, religious expression, the separation of powers, states’ rights, due process of law and the exercise of individual liberties.

Yet, as we mark Constitution Day in accordance with 36 U.S.C. § 106 (2012) (this year, the day is observed on Monday, September 18th), Americans have an uncertain understanding of what the document says, per a recent poll by the Annenberg Public Policy Center of the University of Pennsylvania. The annual Annenberg Constitution Day Civics Survey finds that:

• More than half of Americans (53 percent) incorrectly think it is accurate to say that immigrants who are here illegally do not have any rights under the U.S. Constitution;
• More than a third of those surveyed (37 percent) can’t name any of the rights guaranteed under the First Amendment;
• Only a quarter of Americans (26 percent) can name all three branches of government.

A recent article in the NY Times, New York Congregation Owns Oldest Synagogue in the U.S., 180 Miles Away, Court Rules, reports that a federal appeals court has ruled that Shearith Israel in New York actually owns the Touro Synagogue building in Newport. Shearith Israel, founded in Manhattan in 1654, is the oldest congregation. Touro Synagogue, in Newport, R.I., built in 1763, is the oldest synagogue building. Justice David H. Souter, the retired associate justice of the Supreme Court, wrote the opinion in Congregation Jeshuat Israel v. Congregation Shearith Israel for the First Circuit Court of Appeals in Boston. In it, he overturned a district-court ruling that the congregation that has worshiped for more than 130 years in the Touro Synagogue building, Jeshuat Israel, had control over the building and its objects. Now, what may be the country’s most historic synagogue building is officially owned by a group 180 miles away.

Shearith Israel was founded in the Colonial period by 23 Spanish and Portuguese Jews in what is now Lower Manhattan. Since 1897, the Orthodox congregation has met in a Tiffany-designed neo-Classical building on 70th Street and Central Park West. When Newport’s Jews faced persecution during the American Revolution, they fled the town and the synagogue building, many for New York. Without a congregation in Newport, Shearith Israel took control of the synagogue. Shearith Israel was historically Sephardic, while Jeshuat Israel was mostly Ashkenazi. Justice Souter reversed the trial judge order that sided with Jeshuat Israel. See earlier BLS Library blog post here. The three-judge panel of the 1st U.S. Circuit Court of Appeals relied on contract law and looked at the 1903 agreement and other contracts as it would in any other civil law case. Justice Souter put it delicately: “These are circumstances in which we think that the First Amendment calls for a more circumscribed consideration of evidence than the trial court’s plenary enquiry into centuries of the parties’ conduct by examining their internal documentation that had been generated without resort to the formalities of the civil law.”

Touro Synagogue holds an important place in the history of the nation’s commitment to religious liberty. In 1790, George Washington visited Touro and sent a letter to the congregation pledging America’s commitment to religious liberty. See the letter from Moses Seixas to President George Washington and the response from President Washington, both well worth the reading. Seixas was a first generation Jewish-American whose parents migrated from Lisbon, Portugal, to Newport. Seixas rose to prominence as warden of Newport’s Touro Synagogue of Congregation Jeshuat Israel.

Article 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.

On 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).