Federalist 78 [Alexander Hamilton]:
-The constitution is a higher law (Article VI of the Constitution)
1. It comes from the people
2. It lays the foundation for how other rules are made
-Anything that contradicts this higher law should be void.
-Judges take an oath to uphold the Constitution
-All three branches judge the constitutionality, but the Supreme Court has the final say because "no man can be a judge in his own cause." (Federalist 10) Therefore, Congress cannot vote on their own work.
-No legislative act contrary to the Constitution can be accepted, therefore allowing the judicial branch to declare these void does not make them superior.
-In fact, the people are superior to the courts and Congress.
Monday, June 23, 2008
The Federalist Papers, cont.
Federalist 47 [James Madison]:
-Addresses the separation of departments
-The Anti-Federalists accused the Federalists of violating the maxim that the departments ought to be separate.
-The Federalists agree, but they disagree on the execution of said principle.
-Aristotlean theory can be broken up into the one, the few, and the many, but also perverse and non-perverse. If any one type of government is mixed with another, tyranny ensues.
-This is the first Federalist paper that directly references anyone. Montesquieu is referred to as the Oracle, arguing for separation of powers. He did not mean, however, that other branches were not able to check other branches.
Federalist 48 [James Madison]:
-The legislative branch is the strongest.
x It is to be most feared
x Power is of an encroaching nature
x He who controls the money is to be feared
x The "vortex of power" is referenced.
Federalist 49 [James Madison]:
-He referenced Jefferson, who brought up the point that two branches could possibly work together.
-Madison rebuked this point by saying that it wouldn't help to call a convention, as was necessary in the Articles of Confederation.
Federalist 50 [James Madison]:
-Jefferson proposed periodic conventions in the Anti-Federalist Papers, because he wanted documents to be reviewed; he did not want the dead to control the living.
-20 years was determined to be too long to wait for conventions; Madison proposed the amending process instead.
-Addresses the separation of departments
-The Anti-Federalists accused the Federalists of violating the maxim that the departments ought to be separate.
-The Federalists agree, but they disagree on the execution of said principle.
-Aristotlean theory can be broken up into the one, the few, and the many, but also perverse and non-perverse. If any one type of government is mixed with another, tyranny ensues.
-This is the first Federalist paper that directly references anyone. Montesquieu is referred to as the Oracle, arguing for separation of powers. He did not mean, however, that other branches were not able to check other branches.
Federalist 48 [James Madison]:
-The legislative branch is the strongest.
x It is to be most feared
x Power is of an encroaching nature
x He who controls the money is to be feared
x The "vortex of power" is referenced.
Federalist 49 [James Madison]:
-He referenced Jefferson, who brought up the point that two branches could possibly work together.
-Madison rebuked this point by saying that it wouldn't help to call a convention, as was necessary in the Articles of Confederation.
Federalist 50 [James Madison]:
-Jefferson proposed periodic conventions in the Anti-Federalist Papers, because he wanted documents to be reviewed; he did not want the dead to control the living.
-20 years was determined to be too long to wait for conventions; Madison proposed the amending process instead.
EAKIN V. RAUB
Facts:
Justice John Bannister Gibson effectively answered Marshall's argument supporting judicial review.
Opinion: Gibson
-The powers of the judiciar are POLITICAL and civil; every power by which one branch of government is able to control another is political power.
-The constitution and the right of the legislative branch to pass the act are in collision.
-It is the business of the judiciary to interpret the laws, not question the authority of the law given.
-The Supreme Court is fallible, and therefore it rests with the people to correct abuses in legislature; it is easier to remedy through the legislative branch because the people can simply influence the members of Congress to repeal the act.
-Each person holding any office of power in the three branches takes an oath to uphold the constitution.
-The legislative branch makes the laws, therefore it should be able to interpret the laws as well.
Evaluation:
Gibson argues that although the judiciary branch does have political and civil powers, when it uses its political powers it is taking away power from the legislative branch and giving supreme power to the judiciary branch, in direct violation of the separation of powers intended by the framers (Federalist No. 51.) Since the legislative branch is given the power to pass a law or act, they should in turn be given the power to repeal it as well. If the judiciary branch is given this power and makes a mistake, it is much more difficult to remedy the situation.
Key Principles:
Fallibility
Separation of Powers
Justice John Bannister Gibson effectively answered Marshall's argument supporting judicial review.
Opinion: Gibson
-The powers of the judiciar are POLITICAL and civil; every power by which one branch of government is able to control another is political power.
-The constitution and the right of the legislative branch to pass the act are in collision.
-It is the business of the judiciary to interpret the laws, not question the authority of the law given.
-The Supreme Court is fallible, and therefore it rests with the people to correct abuses in legislature; it is easier to remedy through the legislative branch because the people can simply influence the members of Congress to repeal the act.
-Each person holding any office of power in the three branches takes an oath to uphold the constitution.
-The legislative branch makes the laws, therefore it should be able to interpret the laws as well.
Evaluation:
Gibson argues that although the judiciary branch does have political and civil powers, when it uses its political powers it is taking away power from the legislative branch and giving supreme power to the judiciary branch, in direct violation of the separation of powers intended by the framers (Federalist No. 51.) Since the legislative branch is given the power to pass a law or act, they should in turn be given the power to repeal it as well. If the judiciary branch is given this power and makes a mistake, it is much more difficult to remedy the situation.
Key Principles:
Fallibility
Separation of Powers
MID-TERM IDENTIFICATION TERMS
1. Federal courts: the court system which handles civil and criminal cases based on jurisdictions enumerated in the Constitution and federal statutes. They include federal district courts which are trial courts, district courts of appeals and the U.S. Supreme Court, as well as specialized courts such as bankruptcy, tax, claims (against the government) and veterans' appeals.
2. State courts: a court that decides cases involving state law or the state constitution. State courts have jurisdiction to consider disputes involving individual defendants who reside in that state or have minimum contracts with the state. They are commonly divided according to subject matter, such as criminal court, family court, and probate court.
3. Jurisdiction: the authority given by law to a court to try cases and rule on legal matters within a particular geographic area and/or over certain types of legal cases. It is vital to determine before a lawsuit is filed which court has jurisdiction. State courts have jurisdiction over matters within that state, and different levels of courts have jurisdiction over lawsuits involving different amounts of money.
4. Original jurisdiction: the authority of a court to hold a trial, as distinguished from appellate jurisdiction to hear appeals from trial judgments.
5. Appellate jurisdiction: Appellate jurisdiction is given by statute to appeals courts to hear appeals about the judgment of the lower court that tried a case, and to order reversal or other correction if error is found.
6. Certiorari: (sersh-oh-rare-ee) a writ (order) of a higher court to a lower court to send all the documents in a case to it so the higher court can review the lower court's decision. Certiorari is most commonly used by the U.S. Supreme Court, which is selective about which cases it will hear on appeal. To appeal to the Supreme Court one applies to the Supreme Court for a writ of certiorari, which it grants at its discretion and only when at least three members believe that the case involves a sufficiently significant federal question in the public interest. By denying such a writ the Supreme Court says it will let the lower court decision stand, particularly if it conforms to accepted precedents (previously decided cases).
7. Amicus curiae: Latin for "friend of the court," a party or an organization interested in an issue which files a brief or participates in the argument in a case in which that party or organization is not one of the litigants. Usually the court must give permission for the brief to be filed and arguments may only be made with the agreement of the party the amicus curiae is supporting, and that argument comes out of the time allowed for that party's presentation to the court.
8. Judicial review: any law repugnant to the Constitution, as ruled by the Supreme Court judges, is null and void. This was not included in the Constitution because the Framers thought the idea was too obvious and didn’t want to look stupid.
9. Writ of mandamus: "we command" in Latin, is the name of one of the prerogative writ in the common law and is issued by a superior court (appellate court) to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly.
10. Dicta: The part of a judicial opinion which is merely a judge’s editorializing and does not directly address the specifics of the case at bar; extraneous material which is merely informative or explanatory.
2. State courts: a court that decides cases involving state law or the state constitution. State courts have jurisdiction to consider disputes involving individual defendants who reside in that state or have minimum contracts with the state. They are commonly divided according to subject matter, such as criminal court, family court, and probate court.
3. Jurisdiction: the authority given by law to a court to try cases and rule on legal matters within a particular geographic area and/or over certain types of legal cases. It is vital to determine before a lawsuit is filed which court has jurisdiction. State courts have jurisdiction over matters within that state, and different levels of courts have jurisdiction over lawsuits involving different amounts of money.
4. Original jurisdiction: the authority of a court to hold a trial, as distinguished from appellate jurisdiction to hear appeals from trial judgments.
5. Appellate jurisdiction: Appellate jurisdiction is given by statute to appeals courts to hear appeals about the judgment of the lower court that tried a case, and to order reversal or other correction if error is found.
6. Certiorari: (sersh-oh-rare-ee) a writ (order) of a higher court to a lower court to send all the documents in a case to it so the higher court can review the lower court's decision. Certiorari is most commonly used by the U.S. Supreme Court, which is selective about which cases it will hear on appeal. To appeal to the Supreme Court one applies to the Supreme Court for a writ of certiorari, which it grants at its discretion and only when at least three members believe that the case involves a sufficiently significant federal question in the public interest. By denying such a writ the Supreme Court says it will let the lower court decision stand, particularly if it conforms to accepted precedents (previously decided cases).
7. Amicus curiae: Latin for "friend of the court," a party or an organization interested in an issue which files a brief or participates in the argument in a case in which that party or organization is not one of the litigants. Usually the court must give permission for the brief to be filed and arguments may only be made with the agreement of the party the amicus curiae is supporting, and that argument comes out of the time allowed for that party's presentation to the court.
8. Judicial review: any law repugnant to the Constitution, as ruled by the Supreme Court judges, is null and void. This was not included in the Constitution because the Framers thought the idea was too obvious and didn’t want to look stupid.
9. Writ of mandamus: "we command" in Latin, is the name of one of the prerogative writ in the common law and is issued by a superior court (appellate court) to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly.
10. Dicta: The part of a judicial opinion which is merely a judge’s editorializing and does not directly address the specifics of the case at bar; extraneous material which is merely informative or explanatory.
Sunday, June 22, 2008
Fed Paper #10 & #51
#10
Factions= a number of citizens who are united by a common interest and adheres to the rights of others.
- Popular govts have perished under factions through instability, injustice, and confusion introduced
- Governments are too unstable
- Measure are too often decided by the tyranny of the majority
Two Methods of Curing the Mischiefs of Factions
1.Removing its causes
Destroying liberty
Creating common interests
2. Controlling its effects
Removing its causes
- Cannot abolish liberty
- As long as the reason of man continues to be fallible, different opinion will be formed
- Division of society into different parties is caused by property rights
- The causes of factions are found in the nature of man
- Man is much more disposed to oppress each other than to cooperate for the common good
- The most common source of faction is through the unequal distribution of property
- No man is allowed to judge his own cause, because his interest biases his judgment
- The most powerful faction is expected to prevail when two parties conflict
*tyranny of the majority
- THE CAUSES CANNOT BE REMOVED!!!!!!!!
Controlling its effects
- If a faction is a minority, it can be crushed by regular vote; under the Constitution is will not be able to do so
- The goal of the constitution is to secure the public good and private rights against the danger of such a faction, and at the same preserve the spirit of popular govt
- A pure democracy cannot cure factions
- There is nothing to check the weaken party
- Neither moral nor religious motives can be relied on for control of the majority
Democracy v. Republic
1. Delegation of govt
2. The size of body being governed
3. Republic
- Govt in which the scheme of representation takes place
- Small number of citizens elected by the rest (extend the sphere)
- Greater number of citizens over which it extends
- Representatives must grow to guard against the ideas of a few, but guard against the ideas of a few, but guard against confusion of the multitude
- Republic refines the public view (or ruins)
Democracy (Constitution)
- The federal constitution forms a happy combination by great interests referred to the national and local to the state
- Is able to control tyranny of the majority
® EXAMPLES OF FACTIONS:
◊ Paper money, abolition of debts, equal division of property (economics)
Minority Factions
- Logrolling and rational ignorance= costs are dispersed, benefits are concentrated (changes the rules of the game)
- Madison claims the majority will overrule
Majority Factions
- Judicial review
- Extensive republic
- Checks + balances
Factions
1. Religion
2. Government
3. Leadership
4. Economics
*All of the above are issues that create factions
Framers & Democracy
Problems:
1. Folly=democracies can make bad decisions
2. Feebleness= no stability
3. Tyranny of the majority
Large Republic Theory= PLURALISM
- Every philosopher b/f had encouraged a small republic
- Madison was the first to apply this to a large republic
- Legislative assembly stays about the same
- Have a greater probability of wise citizens
- Diffusive character=word of mouth to get elected
- More difficult for unworthy character to get into office
#51
Separation of Powers
-the necessary separation of powers enables us to form more correct judgments of the principles and structure of government
Essential to the preservation of liberty
- each branch should have as little power of appointment as possible
- In the case of the judicial, however because particular qualifications are necessary
- The length of term is life
Checks and Balances
- The interest of man must be connected with the constitutional rights
- Such devices are necessary to control the abuses of government
- If men were angels, no government would be necessary (recognizes fallibility)
- Enable the government to control the governed and control itself
Power of Branches
- It is not possible to give each department an equal power of self defense
- Limit the legislative branch
- Fortify the executive branch
Federalist System Advantages
1. The different branches will control each other while at the same time controlling itself
2. Guards the citizens against the tyranny of the majority by dividing interests and classes
3. Justice is the end of govt, and will be obtained until liberty is lost in the pursuit
4. The federal principle is used so that the govt will protect all parties, the weaker as well as the more powerful
Factions= a number of citizens who are united by a common interest and adheres to the rights of others.
- Popular govts have perished under factions through instability, injustice, and confusion introduced
- Governments are too unstable
- Measure are too often decided by the tyranny of the majority
Two Methods of Curing the Mischiefs of Factions
1.Removing its causes
Destroying liberty
Creating common interests
2. Controlling its effects
Removing its causes
- Cannot abolish liberty
- As long as the reason of man continues to be fallible, different opinion will be formed
- Division of society into different parties is caused by property rights
- The causes of factions are found in the nature of man
- Man is much more disposed to oppress each other than to cooperate for the common good
- The most common source of faction is through the unequal distribution of property
- No man is allowed to judge his own cause, because his interest biases his judgment
- The most powerful faction is expected to prevail when two parties conflict
*tyranny of the majority
- THE CAUSES CANNOT BE REMOVED!!!!!!!!
Controlling its effects
- If a faction is a minority, it can be crushed by regular vote; under the Constitution is will not be able to do so
- The goal of the constitution is to secure the public good and private rights against the danger of such a faction, and at the same preserve the spirit of popular govt
- A pure democracy cannot cure factions
- There is nothing to check the weaken party
- Neither moral nor religious motives can be relied on for control of the majority
Democracy v. Republic
1. Delegation of govt
2. The size of body being governed
3. Republic
- Govt in which the scheme of representation takes place
- Small number of citizens elected by the rest (extend the sphere)
- Greater number of citizens over which it extends
- Representatives must grow to guard against the ideas of a few, but guard against the ideas of a few, but guard against confusion of the multitude
- Republic refines the public view (or ruins)
Democracy (Constitution)
- The federal constitution forms a happy combination by great interests referred to the national and local to the state
- Is able to control tyranny of the majority
® EXAMPLES OF FACTIONS:
◊ Paper money, abolition of debts, equal division of property (economics)
Minority Factions
- Logrolling and rational ignorance= costs are dispersed, benefits are concentrated (changes the rules of the game)
- Madison claims the majority will overrule
Majority Factions
- Judicial review
- Extensive republic
- Checks + balances
Factions
1. Religion
2. Government
3. Leadership
4. Economics
*All of the above are issues that create factions
Framers & Democracy
Problems:
1. Folly=democracies can make bad decisions
2. Feebleness= no stability
3. Tyranny of the majority
Large Republic Theory= PLURALISM
- Every philosopher b/f had encouraged a small republic
- Madison was the first to apply this to a large republic
- Legislative assembly stays about the same
- Have a greater probability of wise citizens
- Diffusive character=word of mouth to get elected
- More difficult for unworthy character to get into office
#51
Separation of Powers
-the necessary separation of powers enables us to form more correct judgments of the principles and structure of government
Essential to the preservation of liberty
- each branch should have as little power of appointment as possible
- In the case of the judicial, however because particular qualifications are necessary
- The length of term is life
Checks and Balances
- The interest of man must be connected with the constitutional rights
- Such devices are necessary to control the abuses of government
- If men were angels, no government would be necessary (recognizes fallibility)
- Enable the government to control the governed and control itself
Power of Branches
- It is not possible to give each department an equal power of self defense
- Limit the legislative branch
- Fortify the executive branch
Federalist System Advantages
1. The different branches will control each other while at the same time controlling itself
2. Guards the citizens against the tyranny of the majority by dividing interests and classes
3. Justice is the end of govt, and will be obtained until liberty is lost in the pursuit
4. The federal principle is used so that the govt will protect all parties, the weaker as well as the more powerful
Marbury v. Madison
Marbury v. Madison Case Brief
I. The Facts of the case:
Several weeks before Thomas Jefferson's inaguration as 3rd United States President in 1801, lame-duck President John Adams passed the District of Columbia Act. The District of Columbia Act authorized the appointment of 42 new justices of the peace. President Adams personally made the nominations and the Senate confirmed the appointments. Secretery of State John Marshall wasn't able to deliver all of the commissions to the would-be justices. The aforementioned situation is typically know as the appointment of the "midnight justices." Upon entering the presidency on March 4, 1801, President Thomas Jefferson instructed Secretery of State James Madison to hold back the delivery of the justices appointments. As a result William Marburry and three of Adams' other appointees filed suit against Secretery of State James Maddison for faliure to deliver the comissions. Marbury and his counterparts wanted the Supreme Court to issue a writ of mandamus (order by a court to a public official directing performance of a nondiscretionary act).
II. The law:
William Marburry and the others proposed that the Supreme Court issue a writ of madamus , ordering Madison to issue the commissions for their justice positions.
III. Decision:
In Marbury v. Madison the Supreme Court ruled in a unanimous (4-0) decison that Marbury had a right to his commission but that the court couldn't issue the writ of mandamus. The court's main goal was to answer 3 distinct questions. The first was if Marbury had a right to his comission. The answer to this is yes, he certainly did. The second question was if the national laws give Marbury legal remady. In respose to this Chief Justice Marshall stated that "The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." At this point evaluation of a third question was needed, whether or not the Supreme Court had the right to issue the writ. When examining the third question Marshall first turned to the Judiciary Act of 1798 and later Article III of the United States Constitution. Section 13 of the Judiciary Act of 1798 states that "The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the district courts . . . and writs of mandamous. . . to any courts appointed, or persons holding office, under the authority of the United States." The power to issue a writ of mandamous as described in this excerpt is a power falling into the category that would have to apply to origional jursdiction. This case is an example of one in which the included in the possible cases of origional jursdiction noted in Article III of the constitution, "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned [within the judicial power of the United States], 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."However the court is powerless to act because the ability to issue a writ of assistance is clearly not entitled to the court in the Constitution. In order for this action to take place the court's right to issue a writ of mandamous would have to be stated in Article III of the Constitution or in an ammendment to the constitution. By asserting that a statute was null and void the court sucessfully used what became formalized as judicial review for negative reasons in a case.
I. The Facts of the case:
Several weeks before Thomas Jefferson's inaguration as 3rd United States President in 1801, lame-duck President John Adams passed the District of Columbia Act. The District of Columbia Act authorized the appointment of 42 new justices of the peace. President Adams personally made the nominations and the Senate confirmed the appointments. Secretery of State John Marshall wasn't able to deliver all of the commissions to the would-be justices. The aforementioned situation is typically know as the appointment of the "midnight justices." Upon entering the presidency on March 4, 1801, President Thomas Jefferson instructed Secretery of State James Madison to hold back the delivery of the justices appointments. As a result William Marburry and three of Adams' other appointees filed suit against Secretery of State James Maddison for faliure to deliver the comissions. Marbury and his counterparts wanted the Supreme Court to issue a writ of mandamus (order by a court to a public official directing performance of a nondiscretionary act).
II. The law:
William Marburry and the others proposed that the Supreme Court issue a writ of madamus , ordering Madison to issue the commissions for their justice positions.
III. Decision:
In Marbury v. Madison the Supreme Court ruled in a unanimous (4-0) decison that Marbury had a right to his commission but that the court couldn't issue the writ of mandamus. The court's main goal was to answer 3 distinct questions. The first was if Marbury had a right to his comission. The answer to this is yes, he certainly did. The second question was if the national laws give Marbury legal remady. In respose to this Chief Justice Marshall stated that "The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." At this point evaluation of a third question was needed, whether or not the Supreme Court had the right to issue the writ. When examining the third question Marshall first turned to the Judiciary Act of 1798 and later Article III of the United States Constitution. Section 13 of the Judiciary Act of 1798 states that "The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the district courts . . . and writs of mandamous. . . to any courts appointed, or persons holding office, under the authority of the United States." The power to issue a writ of mandamous as described in this excerpt is a power falling into the category that would have to apply to origional jursdiction. This case is an example of one in which the included in the possible cases of origional jursdiction noted in Article III of the constitution, "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned [within the judicial power of the United States], 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."However the court is powerless to act because the ability to issue a writ of assistance is clearly not entitled to the court in the Constitution. In order for this action to take place the court's right to issue a writ of mandamous would have to be stated in Article III of the Constitution or in an ammendment to the constitution. By asserting that a statute was null and void the court sucessfully used what became formalized as judicial review for negative reasons in a case.
Chisholm v. Georgia
Facts:
On October 31, 1777 the Executive Council of Georgia authorized State Commissioners, Thomas Stone and Edward Davis to purchase supplies from South Carolinian merchant Robert Farquhar. They never paid Farquhar eventually Farquhar died. Charleston merchant Alexander Chisholm became the executor of Farquar's estate and he pressed Georgia for payment. Georgia refused. Chisholm sued Georgia in US Circuit (district) Court. Georgia claimed that a state cannot be sued by citizens of another state. The court ruled in favor of Georgia. In 1792 Chisholm appealed the decision to the US Supreme Court. Georgia refused to respond on grounds that a state could not be sued by an individual from another state. The Court heard the case regardless and ruled against Georgia overturning the original decision.
Reasoning:
Georgia claimed sovereignty and thus immunity to suits for property. However, Wilson argued in the majority decision that only the people are sovereign and therefore states are subject to suits. Wilson quotes Art III Sec 2 "The judicial power shall extend to all cases...between a State and Citizens of another State" to back up his decision.
HOWEVER, the order of that wording suggests that the framers only intended to address cases in which a State was suing a citizen not the other way around. This interpretation is supported by Federalist 81 in which Publius (AHam) writes: "I shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation.
It is inherent in the nature of sovereignty not to be amenable to the suit of an individual WITHOUT ITS CONSENT. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable."
Reaction:
This case incited dramatic public outcry. Within a day of the decision the House proposed a resolution to amend the Constitution to prohibit such suits. With in 11 months the 11th Amendment was passed and ratified.
On October 31, 1777 the Executive Council of Georgia authorized State Commissioners, Thomas Stone and Edward Davis to purchase supplies from South Carolinian merchant Robert Farquhar. They never paid Farquhar eventually Farquhar died. Charleston merchant Alexander Chisholm became the executor of Farquar's estate and he pressed Georgia for payment. Georgia refused. Chisholm sued Georgia in US Circuit (district) Court. Georgia claimed that a state cannot be sued by citizens of another state. The court ruled in favor of Georgia. In 1792 Chisholm appealed the decision to the US Supreme Court. Georgia refused to respond on grounds that a state could not be sued by an individual from another state. The Court heard the case regardless and ruled against Georgia overturning the original decision.
Reasoning:
Georgia claimed sovereignty and thus immunity to suits for property. However, Wilson argued in the majority decision that only the people are sovereign and therefore states are subject to suits. Wilson quotes Art III Sec 2 "The judicial power shall extend to all cases...between a State and Citizens of another State" to back up his decision.
HOWEVER, the order of that wording suggests that the framers only intended to address cases in which a State was suing a citizen not the other way around. This interpretation is supported by Federalist 81 in which Publius (AHam) writes: "I shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation.
It is inherent in the nature of sovereignty not to be amenable to the suit of an individual WITHOUT ITS CONSENT. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable."
Reaction:
This case incited dramatic public outcry. Within a day of the decision the House proposed a resolution to amend the Constitution to prohibit such suits. With in 11 months the 11th Amendment was passed and ratified.
Saturday, June 21, 2008
McCulloch v. Maryland (1819)
McCulloch v. Maryland (1819) Case Brief
I. Facts: In 1818 the Maryland legislature attempted to tax banks and bank branches not chartered by the state legislature. James McCulloch, who was a cashier of the Baltimore branch of the Second Bank of the United States, against which the law was presumably directed, failed to pay a $15,000 annual fee or comply with the alternative requirement by affixing tax stamps to the bank notes issued. McCulloch brought a writ of error against the Court of Appeals of the State of Maryland, which had upheld a lower court judgment against him.
II. Law: McCulloch is essentially questioning the validity and legality of the act passed by Maryland on the Second Bank of the United States in Maryland.
III. Decision/Reasoning: The Court invoked the “necessary and proper clause” of the Constitution, which the Court asserted gave the Federal government to pass laws not expressly provided for in the Constitution's list of express powers as long as those laws are in useful furtherance of the express powers.
Justice John Marshall offered the opinion of the Court. The case essentially established two fundamental Constitutional law principles:
1. That the Constitution grants to Congress implied powers for implementing the Constitution's express powers, in order to create a functional national government, and
2. That state action may not impede valid constitutional exercises of power by the Federal government.
Justice Marshall asserted that “If any one proposition could command the universal assent of mankind, we might expect that it would be this – that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result, necessarily, from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all.” He also asserts that because one state is unwilling to allow other states to control it; the United States Federal government must bind its constituent parts.
The main point that John Marshall seems to assert is that – although the Constitution does not mention an enumerated power to create banks – it also doesn’t deny this power to Congress and the Federal government. He also asserts that Congress is already given the “great powers” (to tax, to wage war, to coin money, etc.) and that the inferior powers are only made to follow them logically – like the creation of banks.
Marshall supported the Court's opinion textually using the Necessary-and-proper clause, which permits Congress to seek an objective that is within the enumerated powers as long as it is rationally related to the objective and not forbidden by the Constitution. Marshall rejected Maryland's narrow interpretation of the clause, because many of the enumerated powers would be useless. Marshall noted that the Necessary and Proper Clause is listed within the powers of Congress, not the limitations.
For those reasons, the word "necessary" does not refer to the only way of doing something, but rather applies to various procedures for implementing all constitutionally established powers. However, Marshall’s invoking of this clause is not an original assertion, because he was simply reiterating something that had been mentioned and invoked by Hamilton previously written – presumably in a Federalist Essay.
Chief Justice Marshall also determined that Maryland may not tax the bank without violating the Constitution. The Supremacy Clause dictates that State laws comply with the Constitution and succumb when there is a conflict. Taking as undeniable the fact that "the power to tax involves the power to destroy", the court concluded that the Maryland tax could not be levied against the government. If states were allowed to continue their acts, they would destroy the institution created by federal government and oppose the principle of federal supremacy which originated in the text of the Constitution.
The Court held that Maryland violated the Constitution by taxing the bank, and therefore voided that tax.
IV. Evaluation: The case McCulloch v. Maryland was a landmark decision of the Supreme Court that essentially established several fundamental doctrines of judicial power and Constitutional relevance. I agree with the decision that John Marshall and the other Justices of the Supreme Court regarding the decision. In essence what Marshall was asserting was that not all rights of the government and by extension the people are necessarily stated directly in the Constitution. He also invokes the 9th amendment which was included as a provision in the Bill of Rights expressly to assert that not all rights are mentioned and to help negate the effect of what is called in Black’s Law Dictionary, the “Negative Pregnant”.
New York Times v. United States (1971) Case Brief
New York Times v. United States (1971) Case Brief
I. Facts: The New York Times and the Washington Post “acquired” copies of a 7,000 page classified study – which became known as the “Pentagon Papers” – that had been prepared for the Department of Defense on the evolution of U.S. Vietnam policy. On Sunday, June 13, 1971, the Times published the first of these “Pentagon Papers” which was the first in a series of installments of the study that had been condensed by the Times into a smaller size. On June 15, the Nixon administration went into the U.S. District Court of Columbia, to obtain injunctions blocking further publication. On June 25, the Supreme Court granted expedited review, with oral arguments scheduled the next day. The Court rendered its decision four days later on June 30.
II. Law: The question presented before the court was whether or not the First Amendment right of “Freedom of Press” granted to the New York Times and the Washington Post was superseded by the National Government’s supposed need to maintain secrecy of information.
III. Decision/ Reasoning: The format of opinions was unusual; it was per curiam, with each justice delivering a separate opinion. (per curiam – of the court). The per curiam decision that the Supreme Court came to essentially levied the rights asserted in the First Amendment of “Freedom of Press” granted to the New York Times and the Washington Post versus the Executive branch’s supposed need to withhold information and maintain secrecy of information. The Court essentially asserted that any decision that sought to restrain expression is burdened with showing – what is arguably – excessive justification for the enforcement of such a restraint. The decision that the Court handed down was essentially that the Executive had not proved such justification and could therefore not warrant such a restraint on freedom of expression.
Justice Black and Justice Douglas with Justice Brennan concurring asserted that such a violation of a first amendment right by the Government was indefensible. They continued to state that the press (or media) must be given the ability to essentially vet the Government. They asserted that “Only a free and unrestrained press can effectively expose deceptions in the government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and of foreign shot and shell.”
Chief Justice Burger argued – offering a dissenting opinion to the per curiam Court ruling – that rights are not absolute. He cites John Holmes in his argument, stating that much like his assertion that people do not have the right to shout “fire” in a crowded theatre; he states that such exceptions may exist in this scenario that must be discussed. He also states that the New York Times did essentially steal this information from the government, which of in itself was an illegal action.
Justice Harlan, Chief Justice Burger, and Justice Blackmun also offered dissenting arguments that question the expedient with which the case was accomplished.
IV. Evaluation: I agree with the opinion of the Court in the decision. Although the Executive is endowed with certain responsibilities that involve national security which may require stringent security measures; the people of the United States are also endowed with the sovereignty to demand, or in this case receive information. The Constitution does not give the Executive the power to withhold information; if information is solicited or obtained, the people have a right to be informed of it.
Thursday, June 19, 2008
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