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Check Mike Check Sound Circulate Attendance. Time. Today’s Lecture: . The Court Confronts the Politics of the New Republic Confusion With New Institutions Chisholm Hunter’s Lessee McCullough v. Maryland. Lecture Organization:. Class Announcements.

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Presentation Transcript
slide1

Check Mike

Check Sound

Circulate Attendance

Time

slide2

Today’s Lecture:

  • The Court Confronts the Politics of the New Republic
  • Confusion With New Institutions
  • Chisholm
  • Hunter’s Lessee
  • McCullough v. Maryland
slide3

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
slide4

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

slide5

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

slide6

Time

Class Announcements

Quality Points

-- won’t have individual totals until after spring break (explain)

Questions?

slide7

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
slide8

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.
slide9

We talked about this before

Parliamentary System

Center of all legitimacy

Legislature

PRESIDENT

JUDICIARY

Cabinet

Bureaus

(C) Copyright Sean Wilson. 2007.

slide10

Two Basic Sentiments in 1787 American Culture

Constitutional- system logic

Parliamentary Logic

More Oligarchic

More Democratic

Federalist

Confederacy Logic

Anti-federalist/

Republicans

slide11

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 co-manage the executive
  • confusion about when presidents are supposed to use the veto power (Andrew Jackson will be much more aggressive)
slide12

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?

slide13

Cultural Confusion Surrounding the Accident of American Constitutionalism

Eakin v. Raub

Parliamentary Logic

Gibson’s Dissent

-- 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)

slide14

Cultural Confusion Surrounding the Accident of American Constitutionalism

Eakin v. Raub

Parliamentary Logic

Gibson’s Dissent

-- 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)

  • Two replies:
  • Constitution did not create a parliamentary system.
  • Gordon Wood
  • (the English had equated sovereignty with the statutory power; America’s distinct contribution was to make sovereignty and legislation no longer synonymous)
slide15

Time

Cultural Confusion Surrounding the Accident of American Constitutionalism

Eakin v. Raub

Gibson’s Dissent

-- Judge Gibson himself would later abandon this position

slide16

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
slide17

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?

slide18

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.”

“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.”

“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”

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. …”

“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. ...”

“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”

slide19

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

slide20

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
slide21

Chisholm v. Georgia (1798)

All hell breaks loose

  • -- The Constitution is amended (11th Amendment)
slide22

Time

Chisholm v. Georgia (1798)

All hell breaks loose

The Court is Dunked --

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

  • -- The Constitution is amended (11th Amendment)
slide23

Martin v. Hunter’s Lessee (1816)

Facts:

The parties …

  • -- Lord Fairfax owned 300,000 acres; dies
  • -- His heir: Denny Martin Fairfax (British citizen)
  • -- He dies; next heir is Philip Martin.

Question:

What are the facts of this case?

Denny

Fairfax

Phillip Martin

slide24

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

Denny

Fairfax

Phillip Martin

slide25

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

slide26

Martin v. Hunter’s Lessee (1816)

issue

Jay’s Treaty …

  • -- Jay’s Treaty protected the land claims of loyalists (specifically negotiated)
  • -- Under the constitution a properly ratified treaty is considered “federal law,” and is therefore the supreme law of the land

Question:

What is the legal issue in the case?

slide27

The Constitution --

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Constitution --

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

slide28

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
slide29

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
slide30

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
  • Note: Justice Story wrote the opinion (Marshall recused himself because he had entered into a contract to buy a portion of the lands from Phillip Martin)

Question:

Was the decision correct?

Question:

Was it a product of justice’s ideology?

Question:

How does the Court decide the case?

slide31

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. …”

“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. ...”

“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”

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.”

“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.”

“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”

slide32

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 debt above par
      • -- sin taxes (rum)
      • -- tariffs

Question:

What are the facts of this case?

slide33

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).
slide34

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

slide35

Question:

What enumerated power is the government trying to use here?

Answer:

Several

“The Laundry List”

  • Punish Securities fraud/forged currency
  • • Regulate commerce with nations & among states**
  • • Suppress insurrection w/federal forces
  • • Exclusive governance of the capital and forts**
  • • Can’t prohibit the slave trade until 1808.
  • • Can’t suspend habeas corpus unless insurrection
  • • No bill of attainder/ex post facto laws
  • • Enforce the 14th A. (Due Process, Equal Protection)
  • • Enforce the 13th A. (No slavery)
  • Punish Securities fraud/forged currency
  • • Regulate commerce with nations & among states**
  • • Suppress insurrection w/federal forces
  • • Exclusive governance of the capital and forts**
  • • Can’t prohibit the slave trade until 1808.
  • • Can’t suspend habeas corpus unless insurrection
  • • No bill of attainder/ex post facto laws
  • • Enforce the 14th A. (Due Process, Equal Protection)
  • • Enforce the 13th A. (No slavery)
  • • Tax & Spend for the general welfare.
  • • Borrow Money (deficits)
  • • Bankruptcy and Immigration
  • • Coin Money
  • • Weights and Measures
  • • Post Offices and Roads
  • • Patents
  • • Inferior courts
  • • Punish certain crimes**
  • • Declare War
  • • Raise & regulate the military
  • the proper way to tax
  • • No titles of nobility
  • • Tax & Spend for the general welfare.
  • • Borrow Money (deficits)
  • • Bankruptcy and Immigration
  • • Coin Money
  • • Weights and Measures
  • • Post Offices and Roads
  • • Patents
  • • Inferior courts
  • • Punish certain crimes**
  • • Declare War
  • • Raise & regulate the military
  • the proper way to tax
  • • No titles of nobility

Question:

So what’s the problem, then – why can’t the government charter a bank?

slide36

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.”
slide37

McCullough v. Maryland (1819)

Legal issue

Necessary & Proper Clause

  • regulate commerce?
  • regulate the value of money?
  • to borrow money, pay debts, & spend tax money?
  • to fund an Army?

Do it without a bank!

Do it without a bank!

Do it without a bank!

Do it without a bank!

slide38

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?

slide39

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

slide40

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”

slide41

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.”

slide42

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

“It is essential to just construction that many words which import 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.”

slide43

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.”

slide44

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)

slide45

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?

slide46

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
slide47

Article II – Powers of Congress

Section 9

  • Suspend Habeas Corpus
  • Taxes must be Apportioned

Lists things Congress cannot do:

  • No Titles of Nobility
  • Etc., etc,
  • Etc., etc,

Argument from Compositional Structure

(The organization has a clear purpose)

(C) Copyright Sean Wilson. 2007.

slide48

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 of art; it is a colloquialism; it is “legalese”

Question:

For Gryffindore points (and again for someone who is not in my supreme court class), What is the Rule of Law announced in the case?

slide49

McCullough v. Maryland (1819)

Was The Opinion Correct?

Question:

If the decision is legally correct, does it even matter that it also supports a world view?

Question:

Can the decision be correct and be produced by ideology?

Question:

Was the decision produced by “politics?” Did Marshall vote his “ideology?”?

Question:

Was Marshall’s opinion correct. If not, what premise is incorrect?

slide50

Time

McCullough v. Maryland (1819)

Was The Opinion Correct?

Politics?

Justification?

Justification?

Politics?

High Justification

High Politics

slide51

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
    • Therefore, every social or political question will degenerate into a legal question
    • And that Courts will end up ruling everything

Question:

Is De Tocqueville correct?

Question:

What does Alexander Hamilton have to say about this?

slide52

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)
slide53

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”
slide54

Hamilton #78

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor 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

Hamilton

  • Suggestions:
      • the judge’s chambers are not smoke-filled, cigar-chewing rooms.
      • “Judging is special?”
      • “Law” is separate from politics?
      • law is a professional orthodoxy (craft); it is above the mud and dirt found in legislative and executive politics?
  • -- 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”

Question:

Is Hamilton right?

slide55

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:

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?

Closer to the fire

slide56

Time

Closer to the fire

PRESIDENT

SENATE

HOUSE

Procedure:

1. Constitutional decisions could be overturned by Congress

2. Term limits and legislative oversight

JUDICIARY

Copyright, Sean Wilson. 2007