Transcript Slide 1

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Today’s Lecture:
The Court Confronts the Politics of
the New Republic
1. Confusion With New Institutions
2. Chisholm
3. Hunter’s Lessee
4. McCullough v. Maryland
Lecture Organization:
• Class Announcements
• Cultural Confusion Surrounding the Accident of
American Constitutionalism
• Chisholm v. Georgia (1798)
• Martin v. Hunter’s Lessee (1819)
• McCullough v. Maryland (1819)
Time
• Judicial Power, Wisdom, Tyranny & Politics
Class Announcements
Quiz
-- Extremely large
-- 55 questions, 95 minutes
-- Most are your own (check freebies)
-- shorter next time (explain why)
Next Class
-- If we get to McCullough today, there will be no class on
Thursday (let’s wait and see
Class Announcements
Exam
-- Exam is on the 26th
-- Covers up through today (and Thursday if not cancelled)
Next Cases
-- Gibbons v. Ogden
-- Cooley v. Bd. Of Wardens
-- I’ll accept 2 briefs for that day
Time
Class Announcements
Quality Points
-- won’t have individual totals until after spring break (explain)
Questions?
Cultural Confusion Surrounding the
Accident of American Constitutionalism
introduction
-- Last class, we looked at Marbury and the arguments
for/against judicial review
-- Today, we are going to add to that discussion by looking at
some other cases
Basic premise
-- One of the points I want to make today is very simple:
-- Today, we are going to add to that discussion by looking at
some other cases
Cultural Confusion Surrounding the
Accident of American Constitutionalism
introduction
Basic premise
-- One of the points I want to make today is very simple:
-- There was no such thing as a “constitutional system” until the
framers invented it.
-- We must remember that the invention was largely an
accident (the product of political compromise).
-- One of the things that inevitably results from this is that the
culture is going to be somewhat confused about the new
institutions and how they work.
We talked about this before
Parliamentary System
Center of all legitimacy
Legislature
JUDICIARY
PRESIDENT
Cabinet
Bureaus
1/18/2007
(C) Copyright Sean Wilson. 2007.
9
Two Basic Sentiments in 1787 American Culture
Constitutional- system
logic
More Oligarchic
Federalist
Parliamentary Logic
More Democratic
Confederacy Logic
Anti-federalist/
Republicans
Cultural Confusion Surrounding the
Accident of American Constitutionalism
Examples of the Confusion
• Washington’s views about separation of powers (Adams can’t
be involved in cabinet meetings)
• Madison versus Hamilton: what role does the executive play
in legislative affairs?
(Washington = stay out of their business)
(Jefferson = be actively involved in steering legislation)
• Madison and others: some thought the Congress would comanage the executive
• confusion about when presidents are supposed to use the
veto power (Andrew Jackson will be much more aggressive)
Cultural Confusion Surrounding the
Accident of American Constitutionalism
Eakin v. Raub
Gibson’s Dissent
-- Not a full case, only a dissent by Judge Gibson
-- Gibson served on the PA supreme court 37 years
Question:
What does judge
Gibson’s dissenting
opinion argue?
Cultural Confusion Surrounding the
Accident of American Constitutionalism
Eakin v. Raub
Gibson’s Dissent
Parliamentary Logic
-- If a statute passes the procedural requirements of the
Constitution (elections, terms, etc.), that anything the Congress
does should be considered “constitutional”
-- legislature is the “master of its domain,” which is legislating
(even cites Blackstone, an English theorist, for the proposition
that legislative power and sovereignty are one)
Cultural Confusion Surrounding the
Accident of American Constitutionalism
Eakin v. Raub
Gibson’s Dissent
Parliamentary Logic
-- If a statute passes the procedural requirements of the
Constitution (elections, terms, etc.), that anything the Congress
does should be considered “constitutional”
replies: is the “master of its domain,” which is legislating
--Two
legislature
• Constitution
did not create
a parliamentary
(even
cites Blackstone,
an English
theorist, forsystem.
the proposition
that
legislative
• Gordon
Woodpower and sovereignty are one)
(the English had equated sovereignty with the statutory
power; America’s distinct contribution was to make
sovereignty and legislation no longer synonymous)
Time
Cultural Confusion Surrounding the
Accident of American Constitutionalism
Eakin v. Raub
Gibson’s Dissent
-- Judge Gibson himself would later abandon this position
Chisholm v. Georgia (1798)
Facts:
Contract Dispute
-- Georgia purchased supplies during the revolution
-- Apparently Never paid for them
-- Chisholm sued for a debt of nearly $70,000
-- he was the executor of the estate that was owed the
money
Chisholm v. Georgia (1798)
Facts:
Jurisdictional Issue
-- The State is a party to the action
-- “Chisholm v. Georgia”
Question:
Who has jurisdiction over
this, and what kind of
jurisdiction is it?
The Constitution --
“The judicial Power of the United States shall be vested in one
supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish.
establish.”…”
“The judicial power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority.
Authority.”...”
“In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party, the supreme
Court shall
shall have
have original
original Jurisdiction.
Jurisdiction. InInall
allthe
the other
other Cases
Cases before
mentioned, the
the supreme
supreme Court
Court shall
shallhave
haveappellate
appellateJurisdiction,
Jurisdiction,
both as to
to Law
Law and
and Fact,
Fact,with
with such
such Exceptions,
Exceptions, and
and under such
Regulations as the Congress shall make”
Chisholm v. Georgia (1798)
Issue
-- Georgia argued that the federal court could not tell them to
pay the debt
-- Only the courts of Georgia could do that
-- Argument: Georgia is a sovereign state
Confederacy Logic
Chisholm v. Georgia (1798)
decision
-- The Court basically holds:
• read the stupid document. Of course we can hear the case
and of course what we say counts.
• basic idea: “for purposes of the lawsuit, Georgia was not
sovereign”
-- one justice dissented
Chisholm v. Georgia (1798)
All hell breaks loose
-- The Constitution is amended (11th Amendment)
Time
Chisholm v. Georgia (1798)
All hell breaks loose
The Court is Dunked --
-- The Constitution is amended (11th Amendment)
The political ramifications of the decision were amazing: state
legislatures besieged Congress with requests to overturn the
decision. The Georgia House of Representatives considered a law
which said that any federal official who attempted to enforce the
decision would be guilty of a felony, punishable by death by
hanging. The bill did not pass. In response to this intense pressure,
congress passed the 11th amendment, which was ratified in 1798.
This amendment was the first to overturn a sup ct decision. It
provides that the judicial power of the united states shall not extend
to citizens of one state against another state of the union. The Court
was shaken by this and avoided any other controversial decisions
for the next 10 years
Martin v. Hunter’s Lessee (1816)
Facts:
The parties …
-- Lord Fairfax owned 300,000 acres; dies
-- His heir: Denny Martin Fairfax (British citizen)
Question:
-- He dies; next heir is Philip Martin.
What are the facts of
this case?
Fairfax
Denny
Phillip
Martin
Martin v. Hunter’s Lessee (1816)
Facts:
The statute …
-- Virginia prohibits inheritance by an enemy alien
-- This purports to make Denny’s inheritance illegal, and
thus Phillip’s claim, too
Fairfax
Denny
Phillip
Martin
Martin v. Hunter’s Lessee (1816)
Facts:
The Hunters
-- Virginia sells a portion of the land to David Hunter
-- Hunter rents to a tenant
-- Phillip Martin sues Hunter’s tenant
Hunter
Lessee
Phillip
Martin
Martin v. Hunter’s Lessee (1816)
issue
Jay’s Treaty …
-- Jay’s Treaty protected the land claims of loyalists
(specifically negotiated)
Question:
-- Under the constitution a properly ratified treaty is
considered “federal law,” and
is is
therefore
theissue
supreme law
What
the legal
of the land
in the case?
The Constitution --
“This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all
all Treaties
Treaties made, or which shall be
made, under
underthe
the
authority
authority
of the
of United
the United
States,States,
shall beshall
the supreme
be the
Law of the
supreme
Law
land;
of the
and land;
the Judges
and the inJudges
every inState
everyshall
Statebeshall
bound
be
thereby,thereby,
bound
any Thing
any Thing
in the in
Constitution
the Constitution
or Laws
or Laws
of any
of State
any State
to the
to
Contrary
the
Contrary
notwithstanding.
notwithstanding.
Martin v. Hunter’s Lessee (1816)
issue
Virginia’s first position …
-- We interpret Jay’s Treaty differently. It doesn’t protect
loyalist lands (untrue)
-- The Supreme Court says “yes it does,” and remands the
case back to Virginia, directing it to comply with the Treaty
Martin v. Hunter’s Lessee (1816)
issue
Virginia’s second position …
-- Virginia decides that section 25 of the Judiciary act of
1789 is unconstitutional
-- It is claiming that the U.S. Supreme Court has no right to
review a case that originates in state courts
Martin v. Hunter’s Lessee (1816)
The decision
-- The Court rules that it does, in fact, have authority to
interpret questions of federal law that arise in the state court
system
-- The Court has the final say over what federal law means.
A state’s conclusion in this regard cannot be above the
Court’s conclusion
Question:
Question:
Question:
Note: Justice Story wrote the opinion (Marshall
recused
himself because he had entered into a contract to buy a
How
Was
Was does
itthe
a product
decision
the Court
of
portion of the lands from Phillip Martin)
justice’s
decide
correct?
the
ideology?
case?
Time
The Constitution --
“The judicial Power of the United States shall be vested in one
supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish.
establish.”…”
“The judicial power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and
Treaties made,
Treaties
made, or
or which
which shall
shall be
be made,
made, under
under their
theirAuthority.”
Authority. ...”
“In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party, the supreme
Court shall have original Jurisdiction. In all the other Cases before
mentioned, the supreme Court shall have appellate Jurisdiction,
both as to Law and Fact, with such Exceptions, and under such
Regulations as the Congress shall make”
McCullough v. Maryland (1819)
Facts:
The National Bank …
-- Remember the Hamilton Financial Plan?
• Government running a private bank
• Bank of New York
• Financing it with $10 million in taxpayer revenues
• Tax increases to pay the war debtQuestion:
above par
-- sin taxes (rum)
-- tariffs
What are the facts of
this case?
McCullough v. Maryland (1819)
Facts:
The Politics of this …
-- Subjugation of land as a system of power to finance as a
system of power (explain why).
-- banking subjugated farming and threatened planter
hegemony
-- the bank is a political symbol. It has a long history of
political disagreement (mention Jackson).
McCullough v. Maryland (1819)
Legal issue:
Enumerated Powers
-- Federal government can only do what is specifically
enumerated in the Constitution; the States have whatever is
left over
Question:
What is the legal
problem with the
federal government
chartering a bank
Question:
Answer:
What enumerated
power is the
Several
government trying to use here?
“The Laundry List”
• Punish Securities fraud/forged currency
••Tax
Tax && Spend
Spend for
for the
thegeneral
general • Regulate
Regulate commerce
commercewith
with
nations
nations
& &
welfare.
welfare.
among states**
among
states**
••Borrow
Borrow Money
Money (deficits)
(deficits)
• Suppress insurrection w/federal forces
••Bankruptcy
Bankruptcyand
andImmigration
Immigration • Exclusive governance of the capital
••Coin
CoinMoney
Money
and forts**
••Weights
Weightsand
andMeasures
Measures
• Can’t prohibit the slave trade until
••Post
PostOffices
Officesand
andRoads
Roads
1808.
••Patents
Patents
Question:
• Can’t suspend habeas
corpus unless
••Inferior
Inferiorcourts
courts
insurrection
So what’s the problem, then
••Punish
Punishcertain
certaincrimes**
crimes**
• No bill of attainder/ex post facto laws
– why can’t the government
••Declare
Declare War
War
• Enforce the 14th A. (Due Process,
charter a bank?
••Raise
Raise &
& regulate
regulate the
the military
military Equal Protection)
••the
theproper
properway
wayto
totax
tax
• Enforce the 13th A. (No slavery)
••No
Notitles
titlesof
ofnobility
nobility
McCullough v. Maryland (1819)
Legal issue
Necessary & Proper Clause
-- Just because you want to do something that supports or
carries forth an enumerated power, doesn’t mean that you
can do it
-- The thing you want to do has to be “necessary & proper”
for carrying forth the enumerated power in question
-- Basic idea: SOME things which carry forth an
enumerated power simply cannot be done if they are not
“necessary and proper.”
McCullough v. Maryland (1819)
Legal issue
Necessary & Proper Clause
• regulate commerce?
Do it without a bank!
• regulate the value of
money?
Do it without a bank!
• to borrow money, pay debts,
& spend tax money?
Do it without a bank!
• to fund an Army?
Do it without a bank!
McCullough v. Maryland (1819)
The Actual Opinion:
-- try to use a kind of logic to establish his point
.. Let’s take a look
Question:
How is it that Marshall
actually approaches the
problem? How does he
find his answer?
Hercules and the Syllogism
1. The Argument from Constitution
A constitution is not a code [very specific in every detail];
it only has the broad outline of powers
Hercules and the Syllogism
1. The Argument from Constitution
2. The Implied Powers Argument
Articles of Confederation had a clause excluding “incidental or
implied” powers; this constitution doesn’t have that
“contextual omission”
Hercules and the Syllogism
1. The Argument from Constitution
2. The Implied Powers Argument
3. Words are not a picture
“Such is the character of human language that no word conveys
to the mind, in all situations, one single definite idea; and nothing
is more common than to use words in a figurative sense.”
Hercules and the Syllogism
1. The Argument from Constitution
2. The Implied Powers Argument
3. Words are not a picture
4. Adopts a Rule of Reading!
“It is--essential
to just
construction
that many words which import
“excessives”
should
be marginalized
something excessive, should be understood in a more mitigated
sense – in that sense which common usage justifies. The word
“necessary” is of this description. It has not a fixed character
peculiar to itself. It admits of all degrees of comparison; and is often
connected with other words, which increase or diminish the
impression the mind receives of the urgency it imports. A thing may
be necessary, very necessary, absolutely or indispensably
necessary.”
Hercules and the Syllogism
1. The Argument from Constitution
2. The Implied Powers Argument
3. Words are not a picture
4. Adopts a Rule of Reading!
-- “excessives” should be marginalized
-- evidence supporting the rule
1st Article, 10th section: “… imposts, or duties on imports,
except what may be absolutely necessary for executing its
inspection laws.”
Hercules and the Syllogism
1. The Argument from Constitution
2. The Implied Powers Argument
3. Words are not a picture
4. Adopts a Rule of Reading!
-- “excessives” should be marginalized
-- evidence supporting the rule
-- Why add the word proper if this wasn’t so?
-- The Opposite construction doesn’t make sense (e.g.,
Post Office)
Hercules and the Syllogism
5. Then he finds the killer evidence
-- look where they put it!
-- It is in a power-conferring section of the document, not a
power limiting section!
Question:
For Gryffindore points (and
for someone who is not in my
supreme court class),
someone tell me what the
killer evidence is?
Article II – Powers of Congress
Section 8
power to Regulate Commerce
• power to Spend for General Welfare
• power to Punish Piracy on the High Seas
• power to Regulate the Armed Forces
• Coin and Borrow Money
• Etc., etc,
• Etc., etc,
• Necessary and Proper Clause
•
Article II – Powers of Congress
Section 9
Suspend Habeas Corpus
• Taxes must be Apportioned
• No Titles of Nobility
• Etc., etc,
• Etc., etc,
•
Lists things
Congress
cannot do:
Argument from Compositional Structure
1/18/2007
(The organization has a clear purpose)
(C) Copyright Sean Wilson. 2007.
47
McCullough v. Maryland (1819)
The Rule of Law
Expanding Federal Power
REASONABLE J.M.
To make all Laws which shall be necessary and proper for
carrying into Execution the forgoing Powers, and all other
Powers vested by this Constitution …
“Necessary & Proper” is a term
Question:
of art; it is a colloquialism; it is
For Gryffindore points (and again for
“legalese”
someone who is not in my supreme court
class), What is the Rule of Law announced in
the case?
McCullough v. Maryland (1819)
Was The Opinion Correct?
Question:
Question:
Question:
Question:
If the decision is legally
Can
the does
decision
be correct
correct,
it even
matter
Was
Was
the Marshall’s
decision
produced
opinion
and
be supports
producedaby
that
it also
world
by
correct.
“politics?”
If not,
Did
what
Marshall
premise
ideology?
view?
vote his
is incorrect?
“ideology?”?
Time
McCullough v. Maryland (1819)
Was The Opinion Correct?
Politics?
Justification?
Politics?
Justification?
Judicial Power, Wisdom ,
Tyranny and Politics
De Tocqueville
“Jurocracy” – Alan Keyes
-- was a French writer
-- comes to America around the 1830s
-- He makes an interesting observation:
• The Judiciary has the last say over legality
Question:
• Therefore, every social or political
question will
Question:
degenerate into a legal question
Is Dedoes
Tocqueville
What
Alexander
• And that Courts will end up ruling
everything
correct?
Hamilton
have
to say
about this?
Judicial Power, Wisdom ,
Tyranny and Politics
Hamilton
-- in Federalist #78, writing 40 years earlier:
-- Don’t fear them for two reasons
Political Powers
-- they lack the key political powers:
• power over the purse (tax and spending)
• power over the sword (military and police state)
Judicial Power, Wisdom ,
Tyranny and Politics
Hamilton
-- in Federalist #78, writing 40 years earlier:
-- Don’t fear them for two reasons
“Judging is Special”
-- Judges don’t declare policies like other organs of government
-- Judges are bound by a legal orthodoxy
“reach decisions neither by will or force, but by judgment”
HamiltonWisdom
#78
Judicial Power,
,
Tyranny and Politics
Whoever attentively considers the different departments of
power must perceive, that, in a government in which they are
Hamilton from each other, the judiciary, from the nature of its
separated
Suggestions:
functions, will always be the least dangerous to the political
-- in Federalist
#78, writingbecause
40 yearsitearlier:
rights
of the •Constitution;
will be least
in a not
capacity
the judge’s chambers
are
to
annoyfear
or injure
them.
Executive not only dispenses the
-- Don’t
them for
twoThe
reasons
smoke-filled,
cigar-chewing rooms.
honors, but holds the sword of the community. The legislature
“Judging
is• Special”
“Judging
special?”
not
only commands
the is
purse,
but prescribes the rules by
which
the don’t
duties
and rights
of every
citizen
are toof
begovernment
regulated.
• “Law”
ispolicies
separate
fromorgans
politics?
-- Judges
declare
like
other
Question:
The judiciary, on the contrary, has no influence over either the
• bound
law is
alegal
professional
orthodoxy
-Judges
are
by
a
orthodoxy
Is Hamilton
right?
sword or the purse; no direction
either of the
strength or of the
(craft); it is above the mud and dirt
wealth
of decisions
the society;
andbycan
take
nobut
active
resolution
“reach
neither
will or
force,
by judgment”
in belegislative
and
executive
whatever. It found
may truly
said to have
neither
FORCE nor
politics?
WILL, but merely
judgment; and must ultimately depend upon
the aid of the executive arm even for the efficacy of its
judgments.
Judicial Power, Wisdom ,
Tyranny and Politics
Your course paper
-- there is a voluntary paper in this class
-- let’s look at it
Your Course Paper:
Closer to the fire
1. If the Court was only a department,
would it have judicial review?
2. If the Court did not have judicial
review, would any of the cases we study
have been different?
Time
Closer to the fire
PRESIDENT
SENATE
Procedure:
HOUSE
JUDICIARY
1. Constitutional decisions could
be overturned by Congress
2. Term limits and legislative
oversight
7/17/2015
Copyright, Sean Wilson. 2007
56