1-30-12
Lecture # 3: Law & Social Policy: The Power of the Legislature
The Power Most to Be Feared? Is Non Partisan Big Government a Cure ?
Lecture #3: The Legislature
It is to a legislature thus constituted that almost all the authority of the government has been entrusted. Tocqueville Ch. XV
The executive power in our government is not the only, perhaps not even the principal, object of my solicitude. The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period. Tocqueville quoting Thomas Jefferson Ch. XV
1. Reading—Tocqueville Observations from the Ohio River: Kentucky & Ohio; north and south; left and right. Pages 405-408
2. Summary of Lecture #2: The Power of the Judiciary (in 250 Words or Less)
3. Lecture: The Power of the Legislature. DV
4. Class Assignments: Federalist Papers, Tocqueville, Chemerinsky
5. Discussion of Reading
The Class Plan
1. Reading—Tocqueville Observations from the Ohio River: Kentucky & Ohio; north and south; left and right. Pages 405-408
Nicholas Laughlin and John Brown: begin the class with reading from pages 405-408. Please alternate paragraphs. On page 405 begin with "But the truth of this..." and read through the first 4 paragraphs on 406 ending with '.... the proceeds of their work.' Resume reading at page 407 with the words "The influence of slavery..." and continue through the first two paragraphs on page 408.
2. Summary of Lecture #2: The Power of the Judiciary (in 250 Words or Less)
Sample. Request three to five students to share theirs: Three characteristics distinguish a judiciary: the power to arbitrate, the duty to decide an actual case and the requirement that it wait until called upon by real litigants with real cases before exercising its vast power. But the American judiciary possesses a fourth characteristic that distinguishes it: the right to declare laws of congress and the states and the actions of the president unconstitutional. The judiciary is not bound by the text of laws: it follows and applies the constitution, including both express and implied rights. Both Hamilton and Tocqueville believe this power is essential to liberty and an independent judiciary. 102 words.
3. Lecture: The Power of the Legislature. DV
The commerce clause is to the legislative branch what the power to declare laws unconstitutional is to the judiciary: a means to exercise, enlarge and extend the breadth and the scope of its reach to meet contemporary requirements of the constitution.
A transformation in the power of Congress occurred after 1937 when the Supreme Court gave congress broad authority to regulate under the commerce clause, its general spending power and the Reconstruction Amendments (13, 14, 15). This legal change was based on ‘ a perceived need for a strong national government to deal with the problems of the twentieth century….” Chemerinsky, page 238 an example of how changes in the times require a new social policy that in turn affects legal interpretation.
But in the last 15 years, the Supreme Court has reversed direction and has begun limiting the scope of federal powers under the commerce clause, the 14th Amendment and the Tenth Amendment. Chemerinsky, page 239.
4. Assignments Class #3: The Federalist Papers, Tocqueville, Chemerinsky on the Power of the Legislature
Assignments for Class #3:
1. Chemerinsky Chapter 3 The Federal Legislative Power Section 3.1 pp. 238-240; Section 3.3.3—3.3.5 Commerce Clause Before and After 1937 pp. 251-269.
Jenn, please cover assignment # 1 for Class 3:
2. U.S. v. Lopez 514 U.S. 549 (1995) (limits of commerce clause found). Confer Chemerinsky pp.269-272.
Lu, please take #2, US v Lopez and the Chemerinsky comment.
3. Can Congress overrule the Supreme Court? Chemerinsky Section 3.6.2 “What is the Scope of Congress’s Power?” pp. 299-307.
Jasmine, please do #3 assignment, scope of Congress power.
4. Tocqueville Chapter 8 “The Federal Constitution: Legislative Powers” pp. 137-140.
Lauren, please cover #4, Tocqueville, Chapter 8, pp 137-140 on the scope of legislative power (Jasmine’s assignment is Congress, Lauren’s is more general).
5. The Federalist Papers No. 10 (Madison) on factions (compare with Tocqueville on associations) pp. 700-702; No. 47 (Madison) and No. 51 (Madison) on checks and balances, separation of powers.
Chris, please prepare assignment #5, Fed.Papers #10, #47 & #51.
6. Akers v. Baldwin, Ky. 736 S.W.2d 294 (1987); 1988 Amendment to Kentucky Constitution (Limits the mining of coal conveyed by any broad-form deed to methods of coal extraction utilized in the area at the time the deed was signed).
Brittany, please read Akers v Baldwin--I'm interested here in the interplay between judicial power, legislative power and people power. This case helps us bring together the first three lectures by allocating the proper powers to each.
Hence the majority in the United States possess immense actual power and a power of opinion almost as great; and when once it has made up its mind over a question, there are, so to speak, no obstacles which might, I will not say halt, but even retard its onward course long enough to allow it time to heed the complaints of those it crushes as it goes by. The consequences of this state of affairs are dire and dangerous for the future. –Tocqueville 290.
End
5. Discussion of Reading
http://xroads.virginia.edu/~HYPER/DETOC/toc_indx.html (Hypertext Copy of Tocqueville Democracy in America)
Federalist #10 (non-partisan big government?):
Written by James Madison, Federalist #10 is perhaps the most important of the 85 federalist papers.
Excerpts from online sources:
1) Cam Riley: A Short Essay on Federalist Paper #10 (following quoted word for word)
http://www.southsearepublic.org/article/17/read/short_essay_on_federalist_paper_no10>
“The Federalist Papers were published by Alexander Hamilton, James Madison and John Jay in New York during 1787 and 1788 with the intent of swaying opinion in New York into ratifying the new American constitution. One of the most influential of the Federalist Papers is No.10 which was written by James Madison. It discusses the role of faction, liberty and the process of government to control the excesses of faction.
Faction
Central to the tenth paper in the Federalist series is faction. The argument Madison makes is that faction and liberty are inseparable. Instead of focusing on trying to eliminate the causes for faction, the choice of government can control the effects of faction. Madison makes the argument that the means to control the causes of faction is to stamp on dissenting opinions, and remove liberty. In other words oppress until all the polity is of the same opinion. This is totalitarianism. Madison dismisses this as being against the nature of man;
As long as the reason of man continues to be fallible, and he is at liberty to exercise it, different opinions will be formed
Faction is a normal part of liberty, and wrapped in the fallibility of humankind. John Stuart Mills makes similar arguments as to why freedom of expression should never be curtailed. An individual can never be sure that they are not suppressing a truthful opinion as humanity's reasoning abilities are not perfect. Madison uses a similar argument to Mills as to why liberty cannot be abolished in a functioning government;
Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.
From this Madison concludes that liberty and faction are essential in any healthy government system. What isn't healthy is the violence of faction. Madison argues that controlling the effects of violent faction can be achieved through the Republican model of government."
http://www.southsearepublic.org/article/17/read/short_essay_on_federalist_paper_no10>
From Wikipedia (abridged):
The question of faction
Federalist No. 10 continues the discussion of the question broached in Hamilton's Federalist No. 9. Hamilton there addressed the destructive role of faction in breaking apart the republic. The question Madison answers, then, is how to eliminate the negative effects of faction. He defines a faction as "a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community".[14] He identifies the most serious source of faction to be the diversity of opinion in political life which leads to dispute over fundamental issues such as what regime or religion should be preferred.
However, he thinks that "the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society".[15] He saw direct democracy as a danger to individual rights and advocated a representative democracy in order to protect what he viewed as individual liberty from majority rule, or from the effects of such inequality within society. He says, "A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths".[16]
Like the anti-Federalists who opposed him, Madison was substantially influenced by the work of Montesquieu, though Madison and Montesquieu disagreed on the question addressed in this essay. He also relied heavily on the philosophers of the Scottish Enlightenment, especially David Hume, whose influence is most clear in Madison's discussion of the types of faction and in his argument for an extended republic.[17][18]
Modern analysis and reaction
In the first century of the American republic, No. 10 was not regarded as among the more important numbers of The Federalist. For instance, in Democracy in America Alexis de Tocqueville refers specifically to more than fifty of the essays, but No. 10 is not among them.[35] Today, however, No. 10 is regarded as a seminal work of American democracy…. David Epstein, writing in 1984, described it as among the most highly regarded of all American political writing.[37]
Douglass Adair attributes the increased interest in the tenth number to Charles A. Beard's book An Economic Interpretation of the Constitution, published in 1913. Adair also contends that Beard's selective focus on the issue of class struggle, and his political progressivism, has colored modern scholarship on the essay. According to Adair, Beard reads No. 10 as evidence for his belief in "the Constitution as an instrument of class exploitation".[38] Adair's own view is that Federalist No. 10 should be read as "eighteenth-century political theory directed to an eighteenth-century problem; and ... one of the great creative achievements of that intellectual movement that later ages have christened 'Jeffersonian democracy'".[39]
Garry Wills is a noted critic of Madison's argument in Federalist No. 10. In his book Explaining America, he adopts the position of Robert Dahl in arguing that Madison's framework does not necessarily enhance the protections of minorities or ensure the common good. Instead, Wills claims: "Minorities can make use of dispersed and staggered governmental machinery to clog, delay, slow down, hamper, and obstruct the majority. But these weapons for delay are given to the minority irrespective of its factious or nonfactious character; and they can be used against the majority irrespective of its factious or nonfactious character. What Madison prevents is not faction, but action. What he protects is not the common good but delay as such".[40]
Application
Federalist No. 10 is the classic citation for the belief that the Founding Fathers and the constitutional framers did not intend American politics to be partisan. For instance, United States Supreme Court justice John Paul Stevens cites the paper for the statement, "Parties ranked high on the list of evils that the Constitution was designed to check".[41] Discussing a California provision that forbids candidates from running as independents within one year of holding a partisan affiliation, Justice Byron White made apparent the Court's belief that Madison spoke for the framers of the Constitution: "California apparently believes with the Founding Fathers that splintered parties and unrestrained factionalism may do significant damage to the fabric of government. See The Federalist, No. 10 (Madison)".[42]
Madison's argument that restraining liberty to limit faction is an unacceptable solution has been used by opponents of campaign finance limits. Justice Clarence Thomas, for example, invoked Federalist No. 10 in a dissent against a ruling supporting limits on campaign contributions, writing: "The Framers preferred a political system that harnessed such faction for good, preserving liberty while also ensuring good government. Rather than adopting the repressive 'cure' for faction that the majority today endorses, the Framers armed individual citizens with a remedy".[43]
Friday, January 27, 2012
Sunday, January 22, 2012
#2 Class- Law & Social Policy: Judicial Power 1-23-12
1-23-12
Lecture # 2: Law & Social Policy: The Power of the Judiciary
WHAT DO TOCQUEVILLE, HAMILTON, MARBURY & MADISON SAY ABOUT THE AMERICAN JUDICIARY?
Laws are always unstable unless they are founded upon the manners of a nation; manners are the only durable and resisting power in a people. -Tocqueville Ch. XV 319.
…there is no liberty if the power of judging be not separated from the legislative and executive powers. The Federalist Papers, No. 78: The Judiciary Department (Hamilton)
…an American judge is dragged, despite himself, on to the political field. Tocqueville 121
There is hardly a political question in the United States which does not sooner or later turn into a judicial one. Tocqueville 315
1. Reading—Nicole Maddox: Tocqueville Prediction for a New Aristocracy in America
2. Summary of Lecture #1: The Power of the People (in 250 Words or Less)
3. Lecture: The Power of the Judiciary. DV
4. Class Assignments: Federalist Papers, Tocqueville, Textbook
5. Discussion of Reading on a New Aristocracy
…the idea that gold and silver mines are the source of national wealth: a fatal idea which has done more to impoverish those European nations who were enslaved by it and has destroyed more men in America than the united influence of war and bad laws. Tocqueville 41
______________________________________
Assignments for Class #2:
1. The Federalist Papers, No. 78: The Judiciary Department (Hamilton) pp. 463-471.
2. Alexis De Tocqueville, Democracy in America (Penguin Classics, 2003) Chapter 6 Judicial Power in the United States…pp. 116-124; The Federal Courts of Justice pp.161-177 (especially the head notes of each section); page 315. The three characteristics of judicial power, the political power of the judge, the power to declare laws unconstitutional [here is the threshold of law and social policy].
3. Tocqueville Chapter 8 “The Federal Courts of Justice” pp. 161-177.
4. Marbury v. Madison 5 U.S. 137 (1803)
5. Erwin Chemerinsky, Constitutional Law: Principles and Policies (4th Edition, Aspen Publishers, New York), Chapter 2, The Federal Judicial Power pages 32-37, 43-45, 52 (Advisory Opinions) 130-135 (Political Questions).
Laws are always unstable unless they are founded upon the manners of a nation; manners are the only durable and resisting power in a people. -Tocqueville Ch. XV 319.
End
LECTURE # 2
I.
Readings (& Discussion) from Tocqueville (reading at beginning and discussion at end).
Page 647: “Thus as the mass of the nation turns to democracy, the particular class that runs industry becomes more aristocratic…a natural impulse appears to be prompting the emergence of an aristocracy from the very heart of democracy. But that aristocracy is not like any that preceded it. /// Page 648: This business aristocracy seldom lives among the industrial population it manages; it aims not to rule them but to use them. An aristocracy so constituted cannot have a great hold over its employees and, even if it succeeded in grabbing them for a moment, they cannot escape soon enough. It does not know what it wants and cannot act. The landed aristocracy of past centuries was obliged by law, or believed itself obliged by custom, to help its servants and relieve their distress. However, this present industrial aristocracy, having impoverished and brutalized the men it exploits, leaves public charity to feed them in times of crisis. This is a natural consequence of what has been said before. Between the worker and the employer, there are many points of contact but no real relationship.//Generally speaking, I think that the industrial aristocracy which we see rising before our eyes is one of the most harsh ever to appear on earth; but at the same time, it is one of the most restrained and least dangerous.//However, this is the direction in which the friends of democracy should constantly fix their gaze; for if ever aristocracy and the permanent inequality of social conditions were to infiltrate the world once again, it is predictable that this is the door by which they would enter. 267 words. Democracy in America.
Page 561: The life of an aristocrat: “In aristocracies, a certain number of privileged individuals exist whose life is, so to speak, outside and beyond the usual human condition; in every respect they appear to enjoy power, wealth, reputation, wit, refinement and distinction as a natural right.”
II.
Summary Review of Lecture # 1
Personal Professional Skill: Sum Up the Last Class in 250 words or Less
In many meetings you attend today, a Group Scribe will stand at a chalk board or its digital equivalent and write bullet points summarizing discussion highlights. This is usually done in the form of bullet points. In other meetings, minutes are kept in expository prose distinguished by concision and brevity and completeness. In still other settings, a summary may be prepared to record and share the essential points covered at the meeting. I would like to begin following a similar practice for the class.
So in this class we begin by constructing a summary of the first class. Who would like to start? What was the first class about? What enduring lessons shall we take away?
Sample Summary of Class #1: The Power of the People
The first lecture treated the power of the people in a democracy. We began with an introduction to Alexis de Tocqueville and his master work revealing American laws, Democracy in America; a two-volume tour-de-force written in the early 19th century (1835/1840). Using personal observations and interviews, Tocqueville examined the source of American law and the nature of lawmaking in the new world. He believed a new political science was needed for the new world. We learned that the primary basis of law is SOCIAL CONDITION (the ‘law of laws’) and the manners of the nation. We learned that the country forged an unusual alliance between liberty and religion; that the fundamental American ‘religious creed’ (my description, not Tocqueville) was EQUALITY and that equality posed a threat to Freedom. We learned that the American psyche loved MONEY and USEFULLNESS; that education was meant for employment. We learned that one of the most transformative social//legal//political//civic actions in America was reformation of the laws of inheritance and the abolition of fee tail ownership of land. Finally, Tocqueville tells us about two disparate types that settled the new world: the gold-seekers who settled the south, worked plantations with slaves and the more enterprising people of New England whose work ethic and enterprise formed the basic groundwork for our American values. 215 words.
III.
Introduction to Lecture #2: Judicial Power
In Lecture #2, we consider the judicial branch of government. We will consider thereafter in turn the executive branch, the legislative branch and then we will return to Tocqueville for his assessment of the American heart, body, mind and soul and psyche.
The Nature of Judicial Power Tocqueville
Judicial power has three functions:
1. To arbitrate;
2. To act, to decide actual cases (i.e. NOT to advise or theorize or
generalize).
3. To wait (to act when it is summoned.) Unlike the executive and legislative, it cannot initiate.
BUT in America, Tocqueville says there is a fourth that no other judges have: POLITICAL POWER!!!
What is the source of the political power of the judiciary?
Answer: the political power of the judiciary rests upon the judges’ right to decide cases based on the constitution rather than the text of written laws. In other words, American judges have the power to override a law on the grounds it is unconstitutional and therein lays the unique character of the American judiciary. Also, the judiciary provides independent recourse against the excesses of the executive and legislative branches. Tocqueville points out that in other countries, one aggrieved by the prince’s order must ask the same prince for permission to seek redress. (Page 124).
In America, the constitution is primary law and therefore cannot be modified by a mere law (only by amendment).
"Within its restricted limits, the power granted to American courts to pronounce on the constitutionality of laws remains one of the most powerful barriers ever erected against the tyranny of political assemblies." Page 122, Tocqueville.
Federalist No. 78
The judiciary is the least dangerous to political rights of the constitution. The President controls the award of honors and the sword, the legislature commands the purse and commands the people thru making laws: the courts have neither 'force nor will' but only judgment. It is the weakest of the three branches of government.
"There is no liberty if the power of judging be not separated from the
Legislative and executive powers.' Montesquieu, Spirit of Laws, quoted by
Hamilton, Fed. Papers 78.
The right to declare laws unconstitutional is the essence of the power of an independent Judiciary. Without it, the reservations of rights and privileges in the Constitution would amount to nothing. Hamilton, Fed. Papers #78).
This does not mean the judiciary is superior to the legislature. It
means that the power of the people is superior to both (BUT is this true? Consider defense of marriage laws in CA, involving a state constitutional amendment. Can the federal courts declare a state constitutional amendment unconstitutional?)
Lifetime tenure of judges is essential if the courts of justice are to be the bulwarks of a limited constitution. Temporary duration in office also discourages top people from quitting lucrative employment to accept a temporary office.
Textbook
While a national judiciary was deemed necessary, it’s structure was hotly disputed. The majority wanted both a supreme court and such inferior courts as congress might establish from time to time. A minority thought the lower courts were an unnecessary and expensive intrusion into states’ rights. Madison argued that states could not be relied upon to uphold federal law. This issue shaped the debate about the nature and powers of the federal judiciary. The independence of the federal judiciary achieved thru lifetime appointments of judges is a major point of departure from state courts, 42 of which provide for some type of electoral review of judges. There are 9 types of cases and controversies within the jurisdiction of the judiciary. Two broad areas: 1) rights of federal government and 2) disputes among states. The fifth area of article III allocates judicial power among the supreme Court and the lower courts. 6th the Article III provides for jury trials for all crimes except impeachment. Finally, a very restrictive paradigm for convictions for treason.
WHERE DOES THE POWER OF JUDICIAL REVIEW COME FROM? It is not mentioned in Article III of the U.S. Constitution, the article setting forth the powers of the judiciary. Is silence based on assumption that it was obvious of is silence a sign that no one thought about it? In Great Britain courts hear civil and criminal cases but do not have power to review the actions of the government itself in light of a constitution.
At the Constitutional convention a proposal to establish a Council of Revision made up of members of the federal judiciary charged with reviewing “every act of the National Legislature before (it become effective)” was voted down on the grounds that the judiciary should not be involved in the law making process.
BUT, Marbury v Madison on federal level and Martin v Hunter’s Lessee reviewing state court decisions and proceedings have firmly established the judiciary as a major part of government even if it’s not expressly stated in the United States Constitution.
AUTHORITY FOR JUDICIAL REVIEW of ACTIONS of President, Congress, state courts and to declare laws unconditional.
LIMITS
52 (Advisory Opinions) 130-135 (Political Questions).
Why are federal courts restrained from making advisory opinions? Some state courts are not and do provide advice on the constitutionality of pending legislation. Three reasons: 1) separation of powers, 2) conservation of judicial resources; 3) ensures disputes are based on real issues not hypothetical---truth comes from the clash if ideas afforded by the adversary system (IS THIS STILL TRUE?)
Political Questions: What is a political question?
Class Assignments
Subject: Assignments for Class # 2, The Judiciary January 23, 2012
1) Jacob: Federalist Paper No. 78 (Hamilton) pp 463-471. Please be prepared to explain this text to the class.
2) Paige: Tocqueville, pp 116-124, (Judicial Power), page 315. " " " And offer your opinion on the quote that sooner or later all political questions become judicial. What are the three characteristics of judicial power?
3) Brittany: Tocqueville 161-177 (The Federal Courts of Justice). What do you think of the quote from page 315 on political questions and judicial power?
4) Natalie: Marbury v Madison: brief the case for us and explain the ruling and any pros and cons to the result (the supremacy of judicial power).
5) Cassandra: Cherminsky text 32-37, 43-45, 52 (advisory opinions), 130-135 (political questions). Please report and explain to the class. Does the Cherminsky text treating the judiciary and political questions AGREE with Tocqueville observation that all political questions become judicial?
For each of you:
What does Tocqueville say about the only stable source of law? (p. 319)
What do you think of Tocqueville opinion of gold and silver mines as unrelated to national wealth? (page 41). Why does he have such disdain for 'gold-seekers?"
--end
http://xroads.virginia.edu/~HYPER/DETOC/toc_indx.html (Hypertext Copy of Tocqueville Democracy in America)
Tocqueville Excerpts:
Chapter 6
JUDICIAL POWER IN THE UNITED STATES, AND ITS INFLUENCE ON POLITICAL SOCIETY
THE ANGLO-AMERICANS have retained the characteristics of judicial power which are common to other nations--They have, however, made it a powerful political organ--How--In what the judicial system of the Anglo-americans differs from that of all other nations--Why the American judges have the right of declaring laws to be unconstitutional--How they use this right --Precautions taken by the legislator to prevent its abuse.
I HAVE thought it right to devote a separate chapter to the judicial authorities of the United States, lest their great political importance should be lessened in the reader's eyes by merely incidental mention of them. Confederations have existed in other countries besides America; I have seen republics elsewhere than upon the shores of the New World alone: the representative system of government has been adopted in several states of Europe; but I am not aware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans. The judicial organization of the United States is the institution, which a stranger has the greatest difficulty in understanding. He hears the authority of a judge invoked in the political occurrences of every day, and he naturally concludes that in the United States the judges are important political functionaries; nevertheless, when he examines the nature of the tribunals, they offer at the first glance nothing that is contrary to the usual habits and privileges of those bodies; and the magistrates seem to him to interfere in public affairs only by chance, but by a chance that recurs every day.
When the Parliament of Paris remonstrated, or refused to register an edict, or when it summoned a functionary accused of malversation to its bar, its political influence as a judicial body was clearly visible; but nothing of the kind is to be seen in the United States. The Americans have retained all the ordinary characteristics of judicial authority and have carefully restricted its action to the ordinary circle of its functions.
The first characteristic of judicial power in all nations is the duty of arbitration. But rights must be contested in order to warrant the interference of a tribunal; and an action must be brought before the decision of a judge can be had. As long, therefore, as a law is uncontested, the judicial authority is not called upon to discuss it, and it may exist without being perceived. When a judge in a given case attacks a law relating to that case, he extends the circle of his customary duties, without, however, stepping beyond it, since he is in some measure obliged to decide upon the law in order to decide the case. But if he pronounces upon a law without proceeding from a case, he clearly steps beyond his sphere and invades that of the legislative authority.
The second characteristic of judicial power is that it pronounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle by passing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations have agreed to confine his authority; he assumes a more important and perhaps a more useful influence than that of the magistrate, but he ceases to represent the judicial power.
The third characteristic of the judicial power is that it can act only when it is called upon, or when, in legal phrase, it has taken cognizance of an affair. This characteristic is less general than the other two; but, notwithstanding the exceptions, I think it may be regarded as essential. The judicial power is, by its nature, devoid of action; it must be put in motion in order to produce a result. When it is called upon to repress a crime, it punishes the criminal; when a wrong is to be redressed, it is ready to redress it; when an act requires interpretation, it is prepared to interpret it; but it does not pursue criminals, hunt out wrongs, or examine evidence of its own accord. A judicial functionary who should take the initiative and usurp the censureship of the laws would in some measure do violence to the passive nature of his authority.
The Americans have retained these three distinguishing characteristics of the judicial power: an American judge can pronounce a decision only when litigation has arisen, he is conversant only with special cases, and he cannot act until the cause has been duly brought before the court. His position is therefore exactly the same as that of the magistrates of other nations, and yet he is invested with immense political power. How does this come about? If the sphere of his authority and his means of action are the same as those of other judges, whence does he derive a power which they do not possess? The cause of this difference lies in the simple fact that the Americans have acknowledged the right of judges to found their decisions on the Constitution rather than on the laws. In other words, they have permitted them not to apply such laws as may appear to them to be unconstitutional.
I am aware that a similar right has been sometimes claimed, but claimed in vain, by courts of justice in other countries; but in America it is recognized by all the authorities; and not a party, not so much as an individual, is found to contest it. This fact can be explained only by the principles of the American constitutions. In France the constitution is, or at least is supposed to be, immutable; and the received theory is that no power has the right of changing any part of it.1 In England the constitution may change continually,2 or rather it does not in reality exist; the Parliament is at once a legislative and a constituent assembly. The political theories of America are more simple and more rational. An American constitution is not supposed to be immutable, as in France; nor is it susceptible of modification by the ordinary powers of society, as in England. It constitutes a detached whole, which, as it represents the will of the whole people, is no less binding on the legislator than on the private citizen, but which may be altered by the will of the people in predetermined cases, according to established rules. In America the Constitution may therefore vary; but as long as it exists, it is the origin of all authority, and the sole vehicle of the predominating force.
It is easy to perceive how these differences must act upon the position and the rights of the judicial bodies in the three countries I have cited. If in France the tribunals were authorized to disobey the laws on the ground of their being opposed to the constitution, the constituent power would in fact be placed in their hands, since they alone would have the right of interpreting a consituation of which no authority could change the terms. They would therefore take the place of the nation and exercise as absolute a sway over society as the inherent weakness of judicial power would allow them to do. Undoubtedly, as the French judges are incompetent to declare a law to be unconstitutional, the power of changing the constitution is indirectly given to the legislative body, since no legal barrier would oppose the alterations that it might prescribe But it is still better to grant the power of changing the constitution of the people to men who represent (however imperfectly) the will of the people than to men who represent no one but themselves.
It would be still more unreasonable to invest the English judges with the right of resisting the decisions of the legislative body, since the Parliament which makes the laws also makes the constitution; and consequently a law emanating from the three estates of the realm can in no case be unconstitutional. But neither of these remarks is applicable to America.
In the United States the Constitution governs the legislator as much as the private citizen: as it is the first of laws, it cannot be modified by a law; and it is therefore just that the tribunals should obey the Constitution in preference to any law. This condition belongs to the very essence of the judicature; for to select that legal obligation by which he is most strictly bound is in some sort the natural right of every magistrate.
In France the constitution is also the first of laws, and the judges have the same right to take it as the ground of their decisions; but were they to exercise this right, they must perforce encroach on rights more sacred than their own: namely, on those of society, in whose name they are acting. In this case reasons of state clearly prevail over ordinary motives. In America, where the nation can always reduce its magistrates to obedience by changing its Constitution, no danger of this kind is to be feared. Upon this point, therefore, the political and the logical reason agree, and the people as well as the judges preserve their privileges.
Whenever a law that the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may refuse to admit it as a rule; this power is the only one peculiar to the American magistrate, but it gives rise to immense political influence. [NOTE: MARBURY V MADISON]In truth, few laws can escape the searching analysis of the judicial power for any length of time, for there are few that are not prejudicial to some private interest or other, and none that may not be brought before a court of justice by the choice of parties or by the necessity of the case. But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force. Those to whom it is prejudicial learn that means exist of overcoming its authority, and similar suits are multiplied until it becomes powerless. The alternative, then, is, that the people must alter the Constitution or the legislature must repeal the law. The political power which the Americans have entrusted to their courts of justice is therefore immense, but the evils of this power are considerably diminished by the impossibility of attacking the laws except through the courts of justice. If the judge had been empowered to contest the law on the ground of theoretical generalities, if he were able to take the initiative and to censure the legislator, he would play a prominent political part; and as the champion or the antagonist of a party, he would have brought the hostile passions of the nation into the conflict. But when a judge contests a law in an obscure debate on some particular case, the importance of his attack is concealed from public notice; his decision bears upon the interest of an individual, and the law is slighted only incidentally. Moreover, although it is censured, it is not abolished; its moral force may be diminished but its authority is not taken away; and its final destruction can be accomplished only by the reiterated attacks of judicial functionaries. It will be seen, also, that by leaving it to private interest to censure the law, and by intimately uniting the trial of the law with the trial of an individual, legislation is protected from wanton assaults and from the daily aggressions of party spirit. The errors of the legislator are exposed only to meet a real want; and it is always a positive and appreciable fact that must serve as the basis of a prosecution.
I am inclined to believe this practice of the American courts to be at once most favorable to liberty and to public order. If the judge could attack the legislator only openly and directly, he would sometimes be afraid to oppose him; and at other times party spirit might encourage him to brave it at every turn. The laws would consequently be attacked when the power from which they emanated was weak, and obeyed when it was strong; that is to say, when it would be useful to respect them, they would often be contested; and when it would be easy to convert them into an instrument of oppression, they would be respected. But the American judge is brought into the political arena independently of his own will. He judges the law only because he is obliged to judge a case. The political question that he is called upon to resolve is connected with the interests of the parties, and he cannot refuse to decide it without a denial of justice. He performs his functions as a citizen by fulfilling the precise duties which belong to his profession as a magistrate. It is true that, upon this system, the judicial censorship of the courts of justice over the legislature cannot extend to all laws indiscriminately, inasmuch as some of them can never give rise to that precise species of contest which is termed a lawsuit; and even when such a contest is possible, it may happen that no one cares to bring it before a court of justice. The Americans have often felt this inconvenience; but they have left the remedy incomplete, lest they should give it an efficacy that might in some cases prove dangerous. Within these limits the power vested in the American courts of justice of pronouncing a statute to be unconstitutional forms one of the most powerful barriers that have ever been devised against the tyranny of political assemblies.
OTHER POWERS GRANTED TO AMERICAN JUDGES. In the United States all the citizens have the right of indicting the public before the ordinary tribunals--How they use this right--Art. 75 of the French Constitution of the year VIII-The Americans and the English cannot understand the purport of this article.
It is hardly necessary to say that in a free country like America all the citizens have the right of indicting public functionaries before the ordinary tribunals, and that all the judges have the power of convicting public officers. The right granted to the courts of justice of punishing the agents of the executive government when they violate the laws is so natural a one that it cannot be looked upon as an extraordinary privilege. Nor do the springs of government appear to me to be weakened in the United States by rendering all public officers responsible to the tribunals. The Americans seem, on the contrary, to have increased by this means that respect which is due to the authorities, and at the same time to have made these authorities more careful not to offend. I was struck by the small number of political trials that occur in the United States, but I had no difficulty in accounting for this circumstance. A prosecution, of whatever nature it may be, is always a difficult and expensive undertaking. It is easy to attack a public man in the journals, but the motives for bringing him before the tribunals must be serious. A solid ground of complaint must exist before anyone thinks of prosecuting a public officer, and these officers are careful not to furnish such grounds of complaint when they are afraid of being prosecuted.
This does not depend upon the republican form of American institutions, for the same thing happens in England. These two nations do not regard the impeachment of the principal officers of state as the guarantee of their independence. But they hold that it is rather by minor prosecutions, which the humblest citizen can institute at any time, that liberty is protected, and not by those great judicial procedures which are rarely employed until it is too late.
In the Middle Ages, when it was very difficult to reach offenders, the judges inflicted frightful punishments on the few who were arrested; but this did not diminish the number of crimes. It has since been discovered that when justice is more certain and more mild, it is more efficacious. The English and the Americans hold that tyranny and oppression are to be treated like any other crime, by lessening the penalty and facilitating conviction.
In the year VIII of the French Republic a constitution was drawn up in which the following clause was introduced: "Art. 75. All the agents of the government below the rank of ministers can be prosecuted for offenses relating to their several functions only by virtue of a decree of the council of state; in which case the prosecution takes place before the ordinary tribunals." This clause survived the Constitution of the year VIII and is still maintained, in spite of the just complaints of the nation. I have always found a difficulty in explaining its meaning to Englishmen or Americans, and have hardly understood it myself. They at once perceived that, the council of state in France being a great tribunal established in the center of the kingdom, it was a sort of tyranny to send all complainants before it as a preliminary step. But when I told them that the council of state was not a judicial body in the common sense of the term, but an administrative council composed of men dependent on the crown, so that the king, after having ordered one of his servants, called a prefect, to commit an injustice, has the power of commanding another of his servants, called a councillor of state, to prevent the former from being punished. When I showed them that the citizen who has been injured by an order of the sovereign is obliged to ask the sovereign's permission to obtain redress, they refused to credit so flagrant an abuse and were tempted to accuse me of falsehood or ignorance. It frequently happened before the Revolution that a parliament issued a warrant against a public officer who had committed an offense. Sometimes the royal authority intervened and quashed the proceedings. Despotism then showed itself openly, and men obeyed it only by submitting to superior force. It is painful to perceive how much lower we are sunk than our forefathers, since we allow things to pass, under the color of justice and the sanction of law, which violence alone imposed upon them.
Footnotes
1 See Appendix L
2 See Appendix M
Lecture # 2: Law & Social Policy: The Power of the Judiciary
WHAT DO TOCQUEVILLE, HAMILTON, MARBURY & MADISON SAY ABOUT THE AMERICAN JUDICIARY?
Laws are always unstable unless they are founded upon the manners of a nation; manners are the only durable and resisting power in a people. -Tocqueville Ch. XV 319.
…there is no liberty if the power of judging be not separated from the legislative and executive powers. The Federalist Papers, No. 78: The Judiciary Department (Hamilton)
…an American judge is dragged, despite himself, on to the political field. Tocqueville 121
There is hardly a political question in the United States which does not sooner or later turn into a judicial one. Tocqueville 315
1. Reading—Nicole Maddox: Tocqueville Prediction for a New Aristocracy in America
2. Summary of Lecture #1: The Power of the People (in 250 Words or Less)
3. Lecture: The Power of the Judiciary. DV
4. Class Assignments: Federalist Papers, Tocqueville, Textbook
5. Discussion of Reading on a New Aristocracy
…the idea that gold and silver mines are the source of national wealth: a fatal idea which has done more to impoverish those European nations who were enslaved by it and has destroyed more men in America than the united influence of war and bad laws. Tocqueville 41
______________________________________
Assignments for Class #2:
1. The Federalist Papers, No. 78: The Judiciary Department (Hamilton) pp. 463-471.
2. Alexis De Tocqueville, Democracy in America (Penguin Classics, 2003) Chapter 6 Judicial Power in the United States…pp. 116-124; The Federal Courts of Justice pp.161-177 (especially the head notes of each section); page 315. The three characteristics of judicial power, the political power of the judge, the power to declare laws unconstitutional [here is the threshold of law and social policy].
3. Tocqueville Chapter 8 “The Federal Courts of Justice” pp. 161-177.
4. Marbury v. Madison 5 U.S. 137 (1803)
5. Erwin Chemerinsky, Constitutional Law: Principles and Policies (4th Edition, Aspen Publishers, New York), Chapter 2, The Federal Judicial Power pages 32-37, 43-45, 52 (Advisory Opinions) 130-135 (Political Questions).
Laws are always unstable unless they are founded upon the manners of a nation; manners are the only durable and resisting power in a people. -Tocqueville Ch. XV 319.
End
LECTURE # 2
I.
Readings (& Discussion) from Tocqueville (reading at beginning and discussion at end).
Page 647: “Thus as the mass of the nation turns to democracy, the particular class that runs industry becomes more aristocratic…a natural impulse appears to be prompting the emergence of an aristocracy from the very heart of democracy. But that aristocracy is not like any that preceded it. /// Page 648: This business aristocracy seldom lives among the industrial population it manages; it aims not to rule them but to use them. An aristocracy so constituted cannot have a great hold over its employees and, even if it succeeded in grabbing them for a moment, they cannot escape soon enough. It does not know what it wants and cannot act. The landed aristocracy of past centuries was obliged by law, or believed itself obliged by custom, to help its servants and relieve their distress. However, this present industrial aristocracy, having impoverished and brutalized the men it exploits, leaves public charity to feed them in times of crisis. This is a natural consequence of what has been said before. Between the worker and the employer, there are many points of contact but no real relationship.//Generally speaking, I think that the industrial aristocracy which we see rising before our eyes is one of the most harsh ever to appear on earth; but at the same time, it is one of the most restrained and least dangerous.//However, this is the direction in which the friends of democracy should constantly fix their gaze; for if ever aristocracy and the permanent inequality of social conditions were to infiltrate the world once again, it is predictable that this is the door by which they would enter. 267 words. Democracy in America.
Page 561: The life of an aristocrat: “In aristocracies, a certain number of privileged individuals exist whose life is, so to speak, outside and beyond the usual human condition; in every respect they appear to enjoy power, wealth, reputation, wit, refinement and distinction as a natural right.”
II.
Summary Review of Lecture # 1
Personal Professional Skill: Sum Up the Last Class in 250 words or Less
In many meetings you attend today, a Group Scribe will stand at a chalk board or its digital equivalent and write bullet points summarizing discussion highlights. This is usually done in the form of bullet points. In other meetings, minutes are kept in expository prose distinguished by concision and brevity and completeness. In still other settings, a summary may be prepared to record and share the essential points covered at the meeting. I would like to begin following a similar practice for the class.
So in this class we begin by constructing a summary of the first class. Who would like to start? What was the first class about? What enduring lessons shall we take away?
Sample Summary of Class #1: The Power of the People
The first lecture treated the power of the people in a democracy. We began with an introduction to Alexis de Tocqueville and his master work revealing American laws, Democracy in America; a two-volume tour-de-force written in the early 19th century (1835/1840). Using personal observations and interviews, Tocqueville examined the source of American law and the nature of lawmaking in the new world. He believed a new political science was needed for the new world. We learned that the primary basis of law is SOCIAL CONDITION (the ‘law of laws’) and the manners of the nation. We learned that the country forged an unusual alliance between liberty and religion; that the fundamental American ‘religious creed’ (my description, not Tocqueville) was EQUALITY and that equality posed a threat to Freedom. We learned that the American psyche loved MONEY and USEFULLNESS; that education was meant for employment. We learned that one of the most transformative social//legal//political//civic actions in America was reformation of the laws of inheritance and the abolition of fee tail ownership of land. Finally, Tocqueville tells us about two disparate types that settled the new world: the gold-seekers who settled the south, worked plantations with slaves and the more enterprising people of New England whose work ethic and enterprise formed the basic groundwork for our American values. 215 words.
III.
Introduction to Lecture #2: Judicial Power
In Lecture #2, we consider the judicial branch of government. We will consider thereafter in turn the executive branch, the legislative branch and then we will return to Tocqueville for his assessment of the American heart, body, mind and soul and psyche.
The Nature of Judicial Power Tocqueville
Judicial power has three functions:
1. To arbitrate;
2. To act, to decide actual cases (i.e. NOT to advise or theorize or
generalize).
3. To wait (to act when it is summoned.) Unlike the executive and legislative, it cannot initiate.
BUT in America, Tocqueville says there is a fourth that no other judges have: POLITICAL POWER!!!
What is the source of the political power of the judiciary?
Answer: the political power of the judiciary rests upon the judges’ right to decide cases based on the constitution rather than the text of written laws. In other words, American judges have the power to override a law on the grounds it is unconstitutional and therein lays the unique character of the American judiciary. Also, the judiciary provides independent recourse against the excesses of the executive and legislative branches. Tocqueville points out that in other countries, one aggrieved by the prince’s order must ask the same prince for permission to seek redress. (Page 124).
In America, the constitution is primary law and therefore cannot be modified by a mere law (only by amendment).
"Within its restricted limits, the power granted to American courts to pronounce on the constitutionality of laws remains one of the most powerful barriers ever erected against the tyranny of political assemblies." Page 122, Tocqueville.
Federalist No. 78
The judiciary is the least dangerous to political rights of the constitution. The President controls the award of honors and the sword, the legislature commands the purse and commands the people thru making laws: the courts have neither 'force nor will' but only judgment. It is the weakest of the three branches of government.
"There is no liberty if the power of judging be not separated from the
Legislative and executive powers.' Montesquieu, Spirit of Laws, quoted by
Hamilton, Fed. Papers 78.
The right to declare laws unconstitutional is the essence of the power of an independent Judiciary. Without it, the reservations of rights and privileges in the Constitution would amount to nothing. Hamilton, Fed. Papers #78).
This does not mean the judiciary is superior to the legislature. It
means that the power of the people is superior to both (BUT is this true? Consider defense of marriage laws in CA, involving a state constitutional amendment. Can the federal courts declare a state constitutional amendment unconstitutional?)
Lifetime tenure of judges is essential if the courts of justice are to be the bulwarks of a limited constitution. Temporary duration in office also discourages top people from quitting lucrative employment to accept a temporary office.
Textbook
While a national judiciary was deemed necessary, it’s structure was hotly disputed. The majority wanted both a supreme court and such inferior courts as congress might establish from time to time. A minority thought the lower courts were an unnecessary and expensive intrusion into states’ rights. Madison argued that states could not be relied upon to uphold federal law. This issue shaped the debate about the nature and powers of the federal judiciary. The independence of the federal judiciary achieved thru lifetime appointments of judges is a major point of departure from state courts, 42 of which provide for some type of electoral review of judges. There are 9 types of cases and controversies within the jurisdiction of the judiciary. Two broad areas: 1) rights of federal government and 2) disputes among states. The fifth area of article III allocates judicial power among the supreme Court and the lower courts. 6th the Article III provides for jury trials for all crimes except impeachment. Finally, a very restrictive paradigm for convictions for treason.
WHERE DOES THE POWER OF JUDICIAL REVIEW COME FROM? It is not mentioned in Article III of the U.S. Constitution, the article setting forth the powers of the judiciary. Is silence based on assumption that it was obvious of is silence a sign that no one thought about it? In Great Britain courts hear civil and criminal cases but do not have power to review the actions of the government itself in light of a constitution.
At the Constitutional convention a proposal to establish a Council of Revision made up of members of the federal judiciary charged with reviewing “every act of the National Legislature before (it become effective)” was voted down on the grounds that the judiciary should not be involved in the law making process.
BUT, Marbury v Madison on federal level and Martin v Hunter’s Lessee reviewing state court decisions and proceedings have firmly established the judiciary as a major part of government even if it’s not expressly stated in the United States Constitution.
AUTHORITY FOR JUDICIAL REVIEW of ACTIONS of President, Congress, state courts and to declare laws unconditional.
LIMITS
52 (Advisory Opinions) 130-135 (Political Questions).
Why are federal courts restrained from making advisory opinions? Some state courts are not and do provide advice on the constitutionality of pending legislation. Three reasons: 1) separation of powers, 2) conservation of judicial resources; 3) ensures disputes are based on real issues not hypothetical---truth comes from the clash if ideas afforded by the adversary system (IS THIS STILL TRUE?)
Political Questions: What is a political question?
Class Assignments
Subject: Assignments for Class # 2, The Judiciary January 23, 2012
1) Jacob: Federalist Paper No. 78 (Hamilton) pp 463-471. Please be prepared to explain this text to the class.
2) Paige: Tocqueville, pp 116-124, (Judicial Power), page 315. " " " And offer your opinion on the quote that sooner or later all political questions become judicial. What are the three characteristics of judicial power?
3) Brittany: Tocqueville 161-177 (The Federal Courts of Justice). What do you think of the quote from page 315 on political questions and judicial power?
4) Natalie: Marbury v Madison: brief the case for us and explain the ruling and any pros and cons to the result (the supremacy of judicial power).
5) Cassandra: Cherminsky text 32-37, 43-45, 52 (advisory opinions), 130-135 (political questions). Please report and explain to the class. Does the Cherminsky text treating the judiciary and political questions AGREE with Tocqueville observation that all political questions become judicial?
For each of you:
What does Tocqueville say about the only stable source of law? (p. 319)
What do you think of Tocqueville opinion of gold and silver mines as unrelated to national wealth? (page 41). Why does he have such disdain for 'gold-seekers?"
--end
http://xroads.virginia.edu/~HYPER/DETOC/toc_indx.html (Hypertext Copy of Tocqueville Democracy in America)
Tocqueville Excerpts:
Chapter 6
JUDICIAL POWER IN THE UNITED STATES, AND ITS INFLUENCE ON POLITICAL SOCIETY
THE ANGLO-AMERICANS have retained the characteristics of judicial power which are common to other nations--They have, however, made it a powerful political organ--How--In what the judicial system of the Anglo-americans differs from that of all other nations--Why the American judges have the right of declaring laws to be unconstitutional--How they use this right --Precautions taken by the legislator to prevent its abuse.
I HAVE thought it right to devote a separate chapter to the judicial authorities of the United States, lest their great political importance should be lessened in the reader's eyes by merely incidental mention of them. Confederations have existed in other countries besides America; I have seen republics elsewhere than upon the shores of the New World alone: the representative system of government has been adopted in several states of Europe; but I am not aware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans. The judicial organization of the United States is the institution, which a stranger has the greatest difficulty in understanding. He hears the authority of a judge invoked in the political occurrences of every day, and he naturally concludes that in the United States the judges are important political functionaries; nevertheless, when he examines the nature of the tribunals, they offer at the first glance nothing that is contrary to the usual habits and privileges of those bodies; and the magistrates seem to him to interfere in public affairs only by chance, but by a chance that recurs every day.
When the Parliament of Paris remonstrated, or refused to register an edict, or when it summoned a functionary accused of malversation to its bar, its political influence as a judicial body was clearly visible; but nothing of the kind is to be seen in the United States. The Americans have retained all the ordinary characteristics of judicial authority and have carefully restricted its action to the ordinary circle of its functions.
The first characteristic of judicial power in all nations is the duty of arbitration. But rights must be contested in order to warrant the interference of a tribunal; and an action must be brought before the decision of a judge can be had. As long, therefore, as a law is uncontested, the judicial authority is not called upon to discuss it, and it may exist without being perceived. When a judge in a given case attacks a law relating to that case, he extends the circle of his customary duties, without, however, stepping beyond it, since he is in some measure obliged to decide upon the law in order to decide the case. But if he pronounces upon a law without proceeding from a case, he clearly steps beyond his sphere and invades that of the legislative authority.
The second characteristic of judicial power is that it pronounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle by passing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations have agreed to confine his authority; he assumes a more important and perhaps a more useful influence than that of the magistrate, but he ceases to represent the judicial power.
The third characteristic of the judicial power is that it can act only when it is called upon, or when, in legal phrase, it has taken cognizance of an affair. This characteristic is less general than the other two; but, notwithstanding the exceptions, I think it may be regarded as essential. The judicial power is, by its nature, devoid of action; it must be put in motion in order to produce a result. When it is called upon to repress a crime, it punishes the criminal; when a wrong is to be redressed, it is ready to redress it; when an act requires interpretation, it is prepared to interpret it; but it does not pursue criminals, hunt out wrongs, or examine evidence of its own accord. A judicial functionary who should take the initiative and usurp the censureship of the laws would in some measure do violence to the passive nature of his authority.
The Americans have retained these three distinguishing characteristics of the judicial power: an American judge can pronounce a decision only when litigation has arisen, he is conversant only with special cases, and he cannot act until the cause has been duly brought before the court. His position is therefore exactly the same as that of the magistrates of other nations, and yet he is invested with immense political power. How does this come about? If the sphere of his authority and his means of action are the same as those of other judges, whence does he derive a power which they do not possess? The cause of this difference lies in the simple fact that the Americans have acknowledged the right of judges to found their decisions on the Constitution rather than on the laws. In other words, they have permitted them not to apply such laws as may appear to them to be unconstitutional.
I am aware that a similar right has been sometimes claimed, but claimed in vain, by courts of justice in other countries; but in America it is recognized by all the authorities; and not a party, not so much as an individual, is found to contest it. This fact can be explained only by the principles of the American constitutions. In France the constitution is, or at least is supposed to be, immutable; and the received theory is that no power has the right of changing any part of it.1 In England the constitution may change continually,2 or rather it does not in reality exist; the Parliament is at once a legislative and a constituent assembly. The political theories of America are more simple and more rational. An American constitution is not supposed to be immutable, as in France; nor is it susceptible of modification by the ordinary powers of society, as in England. It constitutes a detached whole, which, as it represents the will of the whole people, is no less binding on the legislator than on the private citizen, but which may be altered by the will of the people in predetermined cases, according to established rules. In America the Constitution may therefore vary; but as long as it exists, it is the origin of all authority, and the sole vehicle of the predominating force.
It is easy to perceive how these differences must act upon the position and the rights of the judicial bodies in the three countries I have cited. If in France the tribunals were authorized to disobey the laws on the ground of their being opposed to the constitution, the constituent power would in fact be placed in their hands, since they alone would have the right of interpreting a consituation of which no authority could change the terms. They would therefore take the place of the nation and exercise as absolute a sway over society as the inherent weakness of judicial power would allow them to do. Undoubtedly, as the French judges are incompetent to declare a law to be unconstitutional, the power of changing the constitution is indirectly given to the legislative body, since no legal barrier would oppose the alterations that it might prescribe But it is still better to grant the power of changing the constitution of the people to men who represent (however imperfectly) the will of the people than to men who represent no one but themselves.
It would be still more unreasonable to invest the English judges with the right of resisting the decisions of the legislative body, since the Parliament which makes the laws also makes the constitution; and consequently a law emanating from the three estates of the realm can in no case be unconstitutional. But neither of these remarks is applicable to America.
In the United States the Constitution governs the legislator as much as the private citizen: as it is the first of laws, it cannot be modified by a law; and it is therefore just that the tribunals should obey the Constitution in preference to any law. This condition belongs to the very essence of the judicature; for to select that legal obligation by which he is most strictly bound is in some sort the natural right of every magistrate.
In France the constitution is also the first of laws, and the judges have the same right to take it as the ground of their decisions; but were they to exercise this right, they must perforce encroach on rights more sacred than their own: namely, on those of society, in whose name they are acting. In this case reasons of state clearly prevail over ordinary motives. In America, where the nation can always reduce its magistrates to obedience by changing its Constitution, no danger of this kind is to be feared. Upon this point, therefore, the political and the logical reason agree, and the people as well as the judges preserve their privileges.
Whenever a law that the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may refuse to admit it as a rule; this power is the only one peculiar to the American magistrate, but it gives rise to immense political influence. [NOTE: MARBURY V MADISON]In truth, few laws can escape the searching analysis of the judicial power for any length of time, for there are few that are not prejudicial to some private interest or other, and none that may not be brought before a court of justice by the choice of parties or by the necessity of the case. But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force. Those to whom it is prejudicial learn that means exist of overcoming its authority, and similar suits are multiplied until it becomes powerless. The alternative, then, is, that the people must alter the Constitution or the legislature must repeal the law. The political power which the Americans have entrusted to their courts of justice is therefore immense, but the evils of this power are considerably diminished by the impossibility of attacking the laws except through the courts of justice. If the judge had been empowered to contest the law on the ground of theoretical generalities, if he were able to take the initiative and to censure the legislator, he would play a prominent political part; and as the champion or the antagonist of a party, he would have brought the hostile passions of the nation into the conflict. But when a judge contests a law in an obscure debate on some particular case, the importance of his attack is concealed from public notice; his decision bears upon the interest of an individual, and the law is slighted only incidentally. Moreover, although it is censured, it is not abolished; its moral force may be diminished but its authority is not taken away; and its final destruction can be accomplished only by the reiterated attacks of judicial functionaries. It will be seen, also, that by leaving it to private interest to censure the law, and by intimately uniting the trial of the law with the trial of an individual, legislation is protected from wanton assaults and from the daily aggressions of party spirit. The errors of the legislator are exposed only to meet a real want; and it is always a positive and appreciable fact that must serve as the basis of a prosecution.
I am inclined to believe this practice of the American courts to be at once most favorable to liberty and to public order. If the judge could attack the legislator only openly and directly, he would sometimes be afraid to oppose him; and at other times party spirit might encourage him to brave it at every turn. The laws would consequently be attacked when the power from which they emanated was weak, and obeyed when it was strong; that is to say, when it would be useful to respect them, they would often be contested; and when it would be easy to convert them into an instrument of oppression, they would be respected. But the American judge is brought into the political arena independently of his own will. He judges the law only because he is obliged to judge a case. The political question that he is called upon to resolve is connected with the interests of the parties, and he cannot refuse to decide it without a denial of justice. He performs his functions as a citizen by fulfilling the precise duties which belong to his profession as a magistrate. It is true that, upon this system, the judicial censorship of the courts of justice over the legislature cannot extend to all laws indiscriminately, inasmuch as some of them can never give rise to that precise species of contest which is termed a lawsuit; and even when such a contest is possible, it may happen that no one cares to bring it before a court of justice. The Americans have often felt this inconvenience; but they have left the remedy incomplete, lest they should give it an efficacy that might in some cases prove dangerous. Within these limits the power vested in the American courts of justice of pronouncing a statute to be unconstitutional forms one of the most powerful barriers that have ever been devised against the tyranny of political assemblies.
OTHER POWERS GRANTED TO AMERICAN JUDGES. In the United States all the citizens have the right of indicting the public before the ordinary tribunals--How they use this right--Art. 75 of the French Constitution of the year VIII-The Americans and the English cannot understand the purport of this article.
It is hardly necessary to say that in a free country like America all the citizens have the right of indicting public functionaries before the ordinary tribunals, and that all the judges have the power of convicting public officers. The right granted to the courts of justice of punishing the agents of the executive government when they violate the laws is so natural a one that it cannot be looked upon as an extraordinary privilege. Nor do the springs of government appear to me to be weakened in the United States by rendering all public officers responsible to the tribunals. The Americans seem, on the contrary, to have increased by this means that respect which is due to the authorities, and at the same time to have made these authorities more careful not to offend. I was struck by the small number of political trials that occur in the United States, but I had no difficulty in accounting for this circumstance. A prosecution, of whatever nature it may be, is always a difficult and expensive undertaking. It is easy to attack a public man in the journals, but the motives for bringing him before the tribunals must be serious. A solid ground of complaint must exist before anyone thinks of prosecuting a public officer, and these officers are careful not to furnish such grounds of complaint when they are afraid of being prosecuted.
This does not depend upon the republican form of American institutions, for the same thing happens in England. These two nations do not regard the impeachment of the principal officers of state as the guarantee of their independence. But they hold that it is rather by minor prosecutions, which the humblest citizen can institute at any time, that liberty is protected, and not by those great judicial procedures which are rarely employed until it is too late.
In the Middle Ages, when it was very difficult to reach offenders, the judges inflicted frightful punishments on the few who were arrested; but this did not diminish the number of crimes. It has since been discovered that when justice is more certain and more mild, it is more efficacious. The English and the Americans hold that tyranny and oppression are to be treated like any other crime, by lessening the penalty and facilitating conviction.
In the year VIII of the French Republic a constitution was drawn up in which the following clause was introduced: "Art. 75. All the agents of the government below the rank of ministers can be prosecuted for offenses relating to their several functions only by virtue of a decree of the council of state; in which case the prosecution takes place before the ordinary tribunals." This clause survived the Constitution of the year VIII and is still maintained, in spite of the just complaints of the nation. I have always found a difficulty in explaining its meaning to Englishmen or Americans, and have hardly understood it myself. They at once perceived that, the council of state in France being a great tribunal established in the center of the kingdom, it was a sort of tyranny to send all complainants before it as a preliminary step. But when I told them that the council of state was not a judicial body in the common sense of the term, but an administrative council composed of men dependent on the crown, so that the king, after having ordered one of his servants, called a prefect, to commit an injustice, has the power of commanding another of his servants, called a councillor of state, to prevent the former from being punished. When I showed them that the citizen who has been injured by an order of the sovereign is obliged to ask the sovereign's permission to obtain redress, they refused to credit so flagrant an abuse and were tempted to accuse me of falsehood or ignorance. It frequently happened before the Revolution that a parliament issued a warrant against a public officer who had committed an offense. Sometimes the royal authority intervened and quashed the proceedings. Despotism then showed itself openly, and men obeyed it only by submitting to superior force. It is painful to perceive how much lower we are sunk than our forefathers, since we allow things to pass, under the color of justice and the sanction of law, which violence alone imposed upon them.
Footnotes
1 See Appendix L
2 See Appendix M
Sunday, January 8, 2012
Lecture #1--Law & Social Policy 1-9-12: Power, People & Money
1-9-12
Lecture # 1:Law & Social Policy: The Power of People, Money and Property
WHAT WOULD TOCQUEVILLE THINK?
When gold speaks all tongues are silent!
Money doesn’t stink, it deodorizes.
Pecunia obediunt omnia.
He carries an ox on his tongue!
1. Introduction
2. Logistics
3. Lecture: The Law of Laws. DV
4. Class Assignment
Part 1 (of 4): Introduction
In less than two weeks, citizen protesters will try to occupy courts across the country. Their protest is aimed at the United States Supreme Court decision in Citizens United v. Federal Election Commission, a 2010 decision recognizing the first amendment right of a corporation to attempt to influence elections.
MOLLY reads the following:
ABA Journal Law News Now
Group Opposing Citizens United Pushes ‘Occupy the Courts’ Protest
FIRST AMENDMENT
Group Opposing Citizens United Pushes ‘Occupy the Courts’ Protest
Posted Jan 5, 2012 7:08AM CST By Debra Cassens Weiss
A group called Move to Amend is calling for a one-day "Occupy the Courts" demonstration to protest the U.S. Supreme Court’s decision finding that corporations have a First Amendment right to support political candidates.
The group dispatched a press release calling for protests at federal courthouses on Jan. 20 to mark the second anniversary of the Supreme Court’s decision in Citizens United v. Federal Election Commission. The Recorder’s Legal Pad blog and the New Y ork Observer have stories.
The group’s website has permit applications for would-be protesters, handbills and posters to promote the events, and instructions on how to make a “corporate personhood costume” (PDF). There is also a “corporate personhood song” (PDF) to be sung to the tune of “This Land Is Y our Land.” The song asserts that corporations “rape and plunder the world’s resources” and “dump big money into elections.” First Amendment rights have been stolen by corporations, the song asserts. “Those rights belong to you and me.”
Legal Pad has doubts about the federal courts’ reception to such protests. “Now, anyone who’s been through a security screening at a federal building recently knows they aren’t exactly warm and welcoming places for ‘occupations,’ ” the blog says. “No word on how courthouse security folks are handling those protest plans.”
MOLLY reading complete
DV Resumes
* * * * *
Other protest techniques are planned for other venues as well. One proposes to occupy corporations’ headquarters and carry out citizen arrests or ‘apprehensions’ as one group calls them. Here’s a notice from the organization known as PUBLICCITIZEN:
MOLLY reads the following:
http://www.citizen.org/occupy-the-corporations
PUBLICCITIZEN: Celebrating 40 Years of Progress
Occupy the Corporations: Stop the Impostors!
On January 21, 2012 as a part of our Nationwide Day of Action to overturn Citizens United v. FEC and end corporate rule, Public Citizen is working with local activists to ‘apprehend’ corporate impostors posing as ‘people’ with the same constitutional rights as the rest of us.
We'll be exposing these impostors to the light of day in cities and towns throughout the nation, and together with local activists we'll be calling on their elected officials to support a constitutional amendment that would overturn Citizens United and end corporate domination of our democracy. Your action can be as simple as holding signs (we've got samples below!) and gathering petitions in front of a corporate target, or you can use one of the ideas we describe below.
MOLLY pauses: DV asks class from some recommended ideas for action, after which
Molly resumes reading with pause for class comments after each action:
Other Recommendations for Actions
Citizens Posse: In 2010, a Citizens Posse was organized to effect a “citizens’ arrest” of greedy insurance companies that stood in the way of health care reform. They, and other short-sighted big corporations, are only empowered to effectively buy more influence by Citizens United!
Occupy the Kochs: Koch Industries (and the billionaire brothers behind it) are THE pre-eminent funders of faux-grassroots campaigns to gut vital environmental, consumer and worker protections, and the as politicians who support those efforts. Activists in the past have Quarantined the Kochs and held Guerrilla Drive-Ins outside their events and offices.
Corporate Crime Scene: Check out a recent action by Greenpeace in front of the US Chamber of Commerce. “Crime Scene: False Impersonation of a Human Being” has a nice ring to it, and regardless could make a nice sign for your event…
Musical Actions and Flash Mobs: Target got a lot of negative attention when it gave $150,000 to an extreme anti-worker, anti-gay candidate in Minnesota. Citizen activists responded with a spirited performance, Target Ain’t People.” The message applies to many other corporations, obviously.
Banner Hangs: Always an excellent way to get visibility. “ExxonMobil=Person?” for instance. Here’s a great example from the Rainforest Action Network.
Occupy Corporate Offices: For the more daring among you, recent anti-foreclosure actions against Bank of America by New Bottom Line might be worth checking out.
Human Banner examples: Endangered Freedoms; Tax the 1%; and Step It Up.
MOLLY reading complete
DV resumes
Actions in reaction to Citizens United v Federal Election Commission are not limited to ‘colorful’ and original and marginal protests by marginal political activists. Some are quite the essence of establishment practice. Consider the following article from last week’s Huffington Post:
MOLLY reads
'Citizens United' Backlash: Montana Supreme Court Upholds State's Corporate Campaign Spending Ban
First Posted: 01/ 4/12 11:24 AM ET Updated: 01/ 4/12 11:27 AM ET
WASHINGTON -- The Montana Supreme Court has put itself on a collision course with the U.S. Supreme Court by upholding a century-old state law that bans corporate spending in state and local political campaigns.
The law, which was passed by Montana voters in 1912 to combat Gilded Age corporate control over much of Montana's government, states that a "corporation may not make ... an expenditure in connection with a candidate or a political party that supports or opposes a candidate or a political party." In 2010, the U.S. Supreme Court, in its landmark Citizens United v. Federal Election Commission decision, struck down a similar federal statute, holding that independent electoral spending by corporations "do not give rise to corruption or the appearance of corruption" that such laws were enacted to combat.
That reasoning -- described by the Citizens United dissenters as a "crabbed view of corruption" -- compelled 23 of the 24 states with independent spending bans to stop enforcing their restrictions, according to Edwin Bender, executive director of the Helena, Mont.-based National Institute on Money in State Politics. Montana, however, stood by its 1912 law, which led several corporations to challenge it as unconstitutional.
By a 5-2 vote this past Friday, the Montana Supreme Court declined to recognize the common understanding that Citizens United bars all laws limiting independent electoral spending. Instead, Chief Justice Mike McGrath, writing on behalf of the majority, called on the history surrounding the state law to show that corporate money, even if not directly contributed to a campaign, can give rise to corruption.
MOLLY reading complete
DV resumes
** ***
So, what IS Citizens United v. Federal Election Commission? And why has it generated so much attention?
MOLLY reads first three paragraphs of NYT article
Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), 558 U.S. ––––, 130 S.Ct. 876 (January 21, 2010), was a landmark decision by the United States Supreme Court holding that the First Amendment prohibits government from placing limits on independent spending for political purposes by corporations and unions. Wikipedia.
Here is a comprehensive report from the New York Times.
January 21, 2010
The New York Times
Justices, 5-4, Reject Corporate Spending Limit
By ADAM LIPTAK
WASHINGTON — Overruling two important precedents about the First Amendment rights of corporations, a bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections.
The 5-to-4 decision was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said that allowing corporate money to flood the political marketplace would corrupt democracy.
The ruling represented a sharp doctrinal shift, and it will have major political and practical consequences. Specialists in campaign finance law said they expected the decision to reshape the way elections were conducted. Though the decision does not directly address them, its logic also applies to the labor unions that are often at political odds with big business.
**** (Material omitted)
The justices in the majority brushed aside warnings about what might follow from their ruling in favor of a formal but fervent embrace of a broad interpretation of free speech rights.
“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, which included the four members of the court’s conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
The ruling, Citizens United v. Federal Election Commission, No. 08-205, overruled two precedents: Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission, a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions.
The 2002 law, usually called McCain-Feingold, banned the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections.
The law, as narrowed by a 2007 Supreme Court decision, applied to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”
The five opinions in Thursday’s decision ran to more than 180 pages, with Justice John Paul Stevens contributing a passionate 90-page dissent. In sometimes halting fashion, he summarized it for some 20 minutes from the bench on Thursday morning.
Joined by the other three members of the court’s liberal wing, Justice Stevens said the majority had committed a grave error in treating corporate speech the same as that of human beings. (Emphasis added).
*** (Material omitted)
The majority opinion did not disturb bans on direct contributions to candidates, but the two sides disagreed about whether independent expenditures came close to amounting to the same thing.
“The difference between selling a vote and selling access is a matter of degree, not kind,” Justice Stevens wrote. “And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.”
Justice Kennedy responded that “by definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”
The case had unlikely origins. It involved a documentary called “Hillary: The Movie,” a 90-minute stew of caustic political commentary and advocacy journalism. It was produced by Citizens United, a conservative nonprofit corporation, and was released during the Democratic presidential primaries in 2008.
Citizens United lost a suit that year against the Federal Election Commission, and scuttled plans to show the film on a cable video-on-demand service and to broadcast television advertisements for it. But the film was shown in theaters in six cities, and it remains available on DVD and the Internet.
The majority cited a score of decisions recognizing the First Amendment rights of corporations, and Justice Stevens acknowledged that “we have long since held that corporations are covered by the First Amendment.”
But Justice Stevens defended the restrictions struck down on Thursday as modest and sensible. Even before the decision, he said, corporations could act through their political action committees or outside the specified time windows.
*** (Material omitted).
MOLLY reading complete.
DV Begins Lecture
Part 2 (of 4): Lecture
The Power of the People: the Law of Laws
The people reign in the American political world like God over the universe. --Tocqueville 71
For most of the history of the Republic, corporations were forbidden to attempt to influence the outcome of elections. Corporate political activity was criminal political activity in every political subdivision. Kentucky’s prohibition on corporate electioneering is actually ensconced in its constitution.
In 2010, the United States Supreme Court swept side the restrictions on corporate support for candidates in elections finding that as ‘persons’ and ‘citizens’ corporations enjoyed federal constitutional rights to influence elections as an exercise of free speech.
If law were physics, how would the scientist explain this discovery? The written text of the law had not changed; the people had not spoken or voted; no law had been amended. So what process is at work?
In an effort to explain the process, a legal scientist might analogize the law to a prism; it has no source of light itself but reflects and redirects light from other sources.
The course you are about to embark upon will examine instances where law functions as a prism, reflecting and redirecting social policy conditions and changes.
Eight discreet areas will command our attention: 1) corporate political activity; 2) school segregation based on race; 3) capital punishment; 4) libel; 5) war powers; 6) enhanced interrogation techniques (aka, torture); 7) sex and marriage; and 8) government’s right to take property from its citizens for public purposes.
In each of the eight areas, we shall see at work the same dynamics at work in the Citizens United decision of the Supreme Court; i.e., after many years of settled and accepted practice and no change in the written laws, a major legal shift occurs.
What change produced the change?
In this course we will look at the role social policy plays in the transformation. The 19th century political philosopher and social critic Alexis de Tocqueville posits that social condition is the fundamental source of most laws: the law of laws.
NICOLE reads
The condition of society is normally the result of circumstances, sometimes of laws, more often than not a combination of these two causes; but, once it is established, we can consider it as the fundamental source of most of the laws, customs and ideas which regulate the conduct of nations: whatever it does not produce, it modifies. In order to become acquainted with the legislation and the manners of a nation we must, therefore, start by studying the social condition. –Tocqueville 58.
NICOLE reading complete
Part 3 (of 4): Logistics
The Book (s)
And that is exactly how this course will begin: by studying the social condition of the United States as reported and described by Tocqueville himself in his masterwork “Democracy in America.” (1835, 1840). Alexis de Tocqueville, Democracy in America (Penguin Classics 2003) (With an Introduction and Notes by Isaac Kramnick) (Cited in the Syllabus as “Tocqueville”). The aim of this book was to reveal American laws. [335].
Democracy in American is a classic, a two book masterpiece written by French aristocrat, political scientist and one of the founders of social science: Alexis de Tocqueville. His work is a tour de force in politics, economics and economic sociology.
The first book was completed in 1835 and the second in 1840 after Tocqueville toured the country on an official visit to study the penal system. He interviewed citizenry, observed how institutions and processes worked, listened to what people said, learned what they thought and watched what they did.
The chief aim of the book was to study American laws. To do so, Tocqueville looked at the soil from which laws sprung, the climate in which they were nurtured and withered—literally and figuratively.
Unlike other political texts that begin with theory, Tocqueville begins with looking at institutions as they functioned in reality. His approach was scientific and is regarded as a forerunner in the social science genre.
The text is dived between discussion of institutions and processes (Book 1)(1835) and economic and social characteristics. (Book 2) (1840).
Volume 1 established Tocqueville as one of the Europe’s great political thinkers.
Tocqueville was right about many things and wrong about many things. We study him not so much as to endorse his views but to study his theses and the processes he discerns. How are laws made?
What is the law of laws?
The Course Plan
What is the objective of the course? This course is designed to introduce the student to the interplay between law and social policy—the civic intersection where culture, social conditions, customs, economics, morals, politics, prejudice and self-interest meet on the way toward formulation of a governing policy that prudently dispenses public and political justice.
Law and social policy encompasses the relationship between customs and statutes, the letter and spirit of the law, the will of the majority and the rights of the minority. It is both current and enduring---the past and present working together.
What is the course about? It is about the sources of law—the confluence of political power, the exigency and temper of the times as well as the more enduring influences of culture, customs, manners and values and priorities of the people. If zeitgeist is the temper of the times law is the temper of the people. The concept of the ‘people’ transcends the numerical majority of the moment.
The Law of Laws
The course is about the essence of law. Where does it come from, why and how does it change? In this course, we will focus on a particular type of change: a change in the application, administration or interpretation of law WITHOUT a corresponding change in the letter of the law.
The ‘gap’ between the letter of the law and the administration of the law is at least as old as Shakespeare’s Measure for Measure where the Duke stopped enforcing the laws that mandated the death penalty for fornication.
Tocqueville tells us that the Puritans that founded the civil society on North American shores in the 17th century reflexively adopted the criminal codes of their country of origin then routinely ignored them—and the criminal laws they did enforce they enforced---are you ready for this—with KINDNESS!!!
Law and social policy are engaged in a perpetual a pas de deux—sometimes one leads and at other times follows. While their separate form is distinct, their function is unified. They dance and function as one even though they are clearly two.
The course follows the path mapped by Tocqueville. In order to become acquainted with the law we will study social conditions and manners.
Ultimate Questions Posed by the Course
Every lecture, every class, every case and text considered in the course raises the question (s): What is the relationship between law and social policy? Does law lead or follow? Is law master or servant, shadow or corpus? Is social policy determined by the people or by the judiciary or by the legislature or by the executive branch, the bureaucracy or by the constitution? Might social policy come from experts, customs, culture, social conditions, world opinion or informed elite?
Class plan: There will be fourteen classes beginning January 9 and ending April 9. Twelve class plans have been prepared (unplanned time allows for productivity through flexibility and the opportunity to review, summarize and talk about the final exam):
The first four classes are introductory and historical and treat the course resources, the three departments of government and twenty-one law and social policy questions considered by Tocqueville in his masterwork Democracy In America (1835, 1840). The ensuing eight classes will cover (in the sequence in which they will be considered): Capital Punishment, Segregation, Libel, Corporate Political Activity, War Powers, Torture and Terrorism, Family and Governmental Takings.
The first four substantive lectures are animated with a focus on judicial power and social policy, the next two on executive branch power and social policy and the final two on legislative power and social policy. Four broad types of law and policy shape the course: ECONOMIC (Takings and Corporate Political Activity) LIBERTY (Libel and Family), THE STATE (War Powers and Enhanced Interrogation) and SOCIETY (Capital
Part 4 (of 4): Class Assignment
Lecture #1: INTRODUCTION: The Power of the People
[January 9, 2012]
The people reign in the American political world like God over the universe. --Tocqueville 71
Is Tocqueville right? Do the people reign like God over the universe? Are some expressions of the popular will more enduring than others? In 1954, what would the people say about integrating schools? Hadn’t the people already spoken to the subject through their laws requiring racial segregation? More recently, California people exercised their collective voice to utter a resounding ‘no’ to same sex marriage. Can that action stand? For over 100 years the people of Kentucky have been on the official record in their constitution prohibiting corporations from using money to influence an election. Now, the United States Supreme Court says that what the people of Kentucky thought was a vice is really a federal constitutional virtue---a First Amendment exercise of free speech. Never mind Kentucky’s Constitution that adopted the worn out, out-dated wisdom set forth in the Italian proverb: when gold speaks every tongue is silent.
______________________________________________
Assignments for Class #1: Introduction: The Power of the People, Money and Property
1. Alexis de Tocqueville, Democracy in America (Penguin Classics 2003) (With an Introduction and Notes by Isaac Kramnick) (Cited in the Syllabus as “Tocqueville”). The aim of this book was to reveal American laws. [335]. The discussion of Tocqueville will extend over the first four classes. Read Section III of the Introduction by Kramnick in its entirety, pages xxiv through xxxvii and pages xliii through xlvii, the concluding part of Section IV. Also read the author’s Introduction (an excellent historical description of the interplay between law and social policy) pp. 11-16: A new political science is needed for a totally new world. [16].
2. Tocqueville Chapter 2 pp. 36-58 (always read the introductory head notes at the beginning of each chapter). This chapter is an overview of the social, cultural, religious mix that the United States is. It sets the course for the course. Many of its specific topics will be treated in more detail over the next three classes: the national character, common language, equality, land, liberty, the cultural differences between north and south, the nature of ‘gold seekers’, the social theory of the United States, the source and object of laws both penal and political, public education, religion, the spirit of religion and liberty (in opposition or support?) the relationship between law and social conditions.
3. Tocqueville Chapter 3 “Social Conditions” and their impact on the laws pp. 58-67 especially the role the laws of inheritance play in the progress of human affairs. I am not even aware of a country where the love of money has a larger place in men’s hearts or where they express a deeper scorn for the theory of a permanent equality of possessions. [64].
4. Tocqueville Chapter 4 pp. 68-71 “The Sovereignty of the People”: The people reign in the American political world like God over the universe. [71].The collective will of the nation, two impediments to progress before independence, its role in all things.
5. Chemerinsky Chapter 1, Section 1.4 “How Should the Constitution Be Interpreted?” pp.15-26. END
The National Character of the American Union (Chapter 2)
As Tocqueville toured America, nothing stuck his attention more forcibly than the equality of social conditions. He was amazed at the extraordinary influence this fundamental condition exerted upon the progress of society. Social conditions in America gave direction to public attitudes, provided a ‘certain style to the laws, fresh guidelines to governing authorities, and individual habits to those governed.” (Tocqueville, Introduction).
Soon Tocqueville realized that social conditions influenced not only laws and political customs but civil society itself: “It forms opinions, creates feelings, proposes ways of acting, and transforms anything it does not directly instigate itself.” (T. Introduction).
Tocqueville masterwork, Democracy in America, begins with an attempt to describe the contours of an emerging national character of a totally new world; a world built on equality of conditions and populated by ordinary people with no common past, no shared roots, no common ideas and no collective national character.
The key to his entire work is laid out in Chapter Two where Tocqueville described the emerging, collective national character of the people who had settled the American Union. This chapter is an overview of the social, cultural, religious mix that the United States was in the 19th century. Chapter Two sets the course for the course. Many of its specific topics will be treated in more detail over the next three classes: the national character, the importance of a common language, equality in all of its iterations, land, liberty, the cultural differences between north and south, the nature of ‘gold seekers’, the social theory of the United States, the source and object of laws both penal and political, public education, religion, the spirit of religion and liberty (in opposition to or in support of one another?) the relationship between law and social conditions.
Language, government by common consent, sovereignty of an austere and argumentative people who were preoccupied with religion, equality, land and liberty are the broad features of the American family. The family had two branches: the gold seekers who settled the south and the more austere, inventive and enterprising people of New England who brought with them highly developed principles of order and morality.
It was in New England, in the north, that the social theory of the United States was brought together. The pillars of American social theory were: freedom, equality, liberty, justice, religion and duty, including a collective duty of society to its members (for example, in public education). In fact the early laws regarding education reveal the original character of American civilization in its clearest and most flattering light. Schools were established in every township and the citizens were obligated to support them under or face steep fines.
“I have expressed enough to characterize Anglo-American civilization in its true colors. This civilization is the result (and this is something we must always bear in mind) of two quite distinct ingredients which anywhere else have often ended in war but which Americans have succeeded somehow to meld together in wondrous harmony; namely, the spirit of religion and the spirit of liberty.’ (p.55)….. ”far from harming each other, these two inclinations, despite their apparent opposition, seem to walk in mutual agreement and support.” p 56.
Social Condition Produces Laws: (Chapter 3)
The condition of society is normally the result of circumstances, sometimes of laws, more often than not a combination of these two causes; but, once it is established, we can consider it as the fundamental source of most of the laws, customs and ideas which regulate the conduct of nations: whatever it does not produce, it modifies. In order to become acquainted with the legislation and the manners of a nation we must, therefore, start by studying the social condition. –Tocqueville 58.
Tocqueville Chapter 3 “Social Conditions” and their impact on the laws pp. 58-67 especially the role the laws of inheritance play in the progress of human affairs. I am not even aware of a country where the love of money has a larger place in men’s hearts or where they express a deeper scorn for the theory of a permanent equality of possessions. [64].
In the American Union, the basic social condition is democratic equality. There were never any seeds of aristocracy planted in New England. The intellect was the source of influence among men in New England. Those who acquired power over others and had reputations for virtue and wisdom would have been aristocrats if their status had been permanently transferable from father to son.
Aristocracy
Things were different south of the Hudson River where great landed aristocrats founded estates, brought with them to America the English laws of succession and aristocratic principles. But they lacked patronage and were therefore, not aristocrats but they gave the American revolution its greatest leaders.
Laws of Inheritance & Money
Tocqueville registers astonishment that commentators have not written more about the great impact the laws of inheritance have on social progress. (See page 60). It was the laws of inheritance that were the last step on the way to equality. By abolishing primogeniture and allowing ALL children to share equally there are two effects: 1) fragmentation of land into smaller, decreasing parcels and 2) the minds and emotions of the owners are freed and severed from the land. “The law of inheritance has reduced all men to one level.” P 64. Let Tocqueville describe it in his own words in describing the vast estates founded in New York:
“The first generation having passed away, estates began to be parceled out; and the change became more and more rapid with the progress of time. And now, after a lapse of a little more than sixty years, the aspect of society is totally altered; the families of the great landed proprietors are almost all commingled with the general mass. In the state of New York, which formerly contained many of these, there are but two who still keep their heads above the stream; and they must shortly disappear. The sons of these opulent citizens have become merchants, lawyers, or physicians. Most of them have lapsed into obscurity. The last trace of hereditary ranks and distinctions is destroyed; the law of partition has reduced all to one level.” Tocqueville.
Love of Money
“I am not even aware of a country where the love of money has a larger place in men’s hearts or where they express a deeper scorn for the theory of a permanent equality of possessions.” (64). This is a unique aspect of the national character. (64).
Education
Tocqueville: “The Americans can devote to general education only the early years of life. At fifteen they enter upon their calling, and thus their education generally ends at the age when ours begins. If it is continued beyond that point, it aims only towards a particular specialized and profitable purpose; one studies science as one takes up a business; and one takes up only those applications whose immediate practicality is recognized. “[Education must be useful].
Education is a means to getting a job. Education is useful.
Intellectuals
“There is no class, then, in America which passes to its descendants the love of intellectual pleasures along with its wealth or which holds the labors of the intellect in high-esteem.’ (65).
Freedom and Equality: Equality is Their Idol
BUT a warning---EQUALITY and FREEDOM are not good travelling companions and are in ultimate opposition to each other.
Tocqueville observed there are only two methods of establishing equality: bring everybody up or take everybody down].
Tocqueville: “There is, in fact, a manly and lawful passion for equality that incites men to wish all to be powerful and honored. This passion tends to elevate the humble to the rank of the great; but there exists also in the human heart a depraved taste for equality, which impels the weak to attempt to lower the powerful to their own level and reduces men to prefer equality in slavery to inequality with freedom. Not that those nations whose social condition is democratic naturally despise liberty; on the contrary, they have an instinctive love of it. But liberty is not the chief and constant object of their desires; equality is their idol: they make rapid and sudden efforts to obtain liberty and, if they miss their aim, resign themselves to their disappointment; but nothing can satisfy them without equality, and they would rather perish than lose it.”
But Americans have some important saving graces that have allowed them to balance the two and maintain the sovereignty of the people. (Might the constitution be one?)
The Sovereignty of the People (Chapter 4): The Law of Laws
“The people reign in the American political world like God over the universe. It is the cause and aim of all things, everything comes from them and everything is absorbed in them.”
Two impediments checked the progress of the power of the people before independence: 1) the laws of inheritance 2) the influence of the mother country (so it was only apparent in local laws).
The Law of Laws
An aristocracy of sorts in the form of influence existed in New England based upon education and intellect and in the south based on wealth and land ownership. But a rapid disintegration began as soon as the revolution began. The change in the laws of inheritance was the final step needed to make the sovereignty of the people the law of laws.
The power of the people leads to some problems we will consider in the next lecture but in this lecture we may pause to ask:
What would Tocqueville think of Citizens United? What would Tocqueville think about the wisdom of allowing corporations to influence the outcome of elections? Is money speech?
How Shall the Constitution Be Interpreted? Is Judicial Review Consistent with Majority Rule?
So let return to where we began: with the Supreme Court setting aside the laws prohibiting corporations from influencing the outcome of elections. How was this done? By reading the constitution in a new way.
The Need for Interpretation
Two Theories of Interpretation: Originalism and NonOriginalism.
Originalists demand clearly expressed or implied in the text or the original intent. Nonoriginalists approve of protection of rights not clearly stated or even intended (for example, elimination of racial segregation). They believe the constitution can be changed by either amendment or interpretation. The two schools of thought also disagree on HOW the court should decide meaning. Our textbook gives an example involving Justice Thomas’s consideration of the ‘knock and announce rule’ under the 4th Amendment.
Now, as those of you know who have completed con-law, there is no such right expressly set forth in the 4th amendment. But by resorting to history and especially the state of the law in 1791, Justice Thomas ruled the procedure is implied. For a non originalist the historical approach is interesting and convenient but entirely unnecessary as such a right is clearly essential to the 4th amendment regardless what the framers intended. Non originalists might call the constitution a ‘living constitution’.
There are gradations of the two positions, each of which has enjoyed support by the court at various times
The arguments pro and con.
Originalists: the very nature of interpretation requires meaning to be based on text or intent. Everything else is a gloss and leads to the second argument: it constrains the power of unelected judges in a democratic society.
This latter argument is based on the premise that a democratic society is based on majority rule. But is it? And is the constitution really intended to be a pro-majority document? This is at the core of every debate on constitutional interpretation. Should unelected judges (or judges elected by a small segment of the population) overturn the decisions of popularly elected officials and even the decision of the people themselves (for example, in adopting constitutional amendments.
Non Originalists: there are three arguments used to support the non-originalist position: 1) it is more desirable to allow the constitution to evolve by interpretation than by amendment; for example, the framers of the 14th amendment on equal protection clearly did NOT intend for it to protect women from discrimination; but judicial decisions have ruled that it does; 2) it is impossible to discover original intent; intent can be deduced at various levels of abstraction. At the highest level of abstraction, the drafters intended liberty and equality and almost anything could be justified by invoking these two overarching values. 3) The flexible approach was actually intended by the framers.
It is one of the blessings and benefits of our course that we do not have to join or resolve the debate on any of these important issues now. We can
simply and thoughtfully note the pros and cons and save our opinions for another day or time.
DV: January 9, 2012
---Class Lecture Ends---
Bovem habet in lingua. He has an ox on his tongue. (Although this saying makes sense if you think of an actual ox which would weigh down your tongue, in its ancient usage the "ox" referred to coins that were stamped with the image of an ox. In other words, someone has been bribed to stay silent. Compare this variant phrase: Bovem in lingua fert, "He's carrying an ox on his tongue.")
Money doesn’t stink.
Money deodorizes.
When gold speaks all tongues are silent.
Money answereth all things.
Lecture # 1:Law & Social Policy: The Power of People, Money and Property
WHAT WOULD TOCQUEVILLE THINK?
When gold speaks all tongues are silent!
Money doesn’t stink, it deodorizes.
Pecunia obediunt omnia.
He carries an ox on his tongue!
1. Introduction
2. Logistics
3. Lecture: The Law of Laws. DV
4. Class Assignment
Part 1 (of 4): Introduction
In less than two weeks, citizen protesters will try to occupy courts across the country. Their protest is aimed at the United States Supreme Court decision in Citizens United v. Federal Election Commission, a 2010 decision recognizing the first amendment right of a corporation to attempt to influence elections.
MOLLY reads the following:
ABA Journal Law News Now
Group Opposing Citizens United Pushes ‘Occupy the Courts’ Protest
FIRST AMENDMENT
Group Opposing Citizens United Pushes ‘Occupy the Courts’ Protest
Posted Jan 5, 2012 7:08AM CST By Debra Cassens Weiss
A group called Move to Amend is calling for a one-day "Occupy the Courts" demonstration to protest the U.S. Supreme Court’s decision finding that corporations have a First Amendment right to support political candidates.
The group dispatched a press release calling for protests at federal courthouses on Jan. 20 to mark the second anniversary of the Supreme Court’s decision in Citizens United v. Federal Election Commission. The Recorder’s Legal Pad blog and the New Y ork Observer have stories.
The group’s website has permit applications for would-be protesters, handbills and posters to promote the events, and instructions on how to make a “corporate personhood costume” (PDF). There is also a “corporate personhood song” (PDF) to be sung to the tune of “This Land Is Y our Land.” The song asserts that corporations “rape and plunder the world’s resources” and “dump big money into elections.” First Amendment rights have been stolen by corporations, the song asserts. “Those rights belong to you and me.”
Legal Pad has doubts about the federal courts’ reception to such protests. “Now, anyone who’s been through a security screening at a federal building recently knows they aren’t exactly warm and welcoming places for ‘occupations,’ ” the blog says. “No word on how courthouse security folks are handling those protest plans.”
MOLLY reading complete
DV Resumes
* * * * *
Other protest techniques are planned for other venues as well. One proposes to occupy corporations’ headquarters and carry out citizen arrests or ‘apprehensions’ as one group calls them. Here’s a notice from the organization known as PUBLICCITIZEN:
MOLLY reads the following:
http://www.citizen.org/occupy-the-corporations
PUBLICCITIZEN: Celebrating 40 Years of Progress
Occupy the Corporations: Stop the Impostors!
On January 21, 2012 as a part of our Nationwide Day of Action to overturn Citizens United v. FEC and end corporate rule, Public Citizen is working with local activists to ‘apprehend’ corporate impostors posing as ‘people’ with the same constitutional rights as the rest of us.
We'll be exposing these impostors to the light of day in cities and towns throughout the nation, and together with local activists we'll be calling on their elected officials to support a constitutional amendment that would overturn Citizens United and end corporate domination of our democracy. Your action can be as simple as holding signs (we've got samples below!) and gathering petitions in front of a corporate target, or you can use one of the ideas we describe below.
MOLLY pauses: DV asks class from some recommended ideas for action, after which
Molly resumes reading with pause for class comments after each action:
Other Recommendations for Actions
Citizens Posse: In 2010, a Citizens Posse was organized to effect a “citizens’ arrest” of greedy insurance companies that stood in the way of health care reform. They, and other short-sighted big corporations, are only empowered to effectively buy more influence by Citizens United!
Occupy the Kochs: Koch Industries (and the billionaire brothers behind it) are THE pre-eminent funders of faux-grassroots campaigns to gut vital environmental, consumer and worker protections, and the as politicians who support those efforts. Activists in the past have Quarantined the Kochs and held Guerrilla Drive-Ins outside their events and offices.
Corporate Crime Scene: Check out a recent action by Greenpeace in front of the US Chamber of Commerce. “Crime Scene: False Impersonation of a Human Being” has a nice ring to it, and regardless could make a nice sign for your event…
Musical Actions and Flash Mobs: Target got a lot of negative attention when it gave $150,000 to an extreme anti-worker, anti-gay candidate in Minnesota. Citizen activists responded with a spirited performance, Target Ain’t People.” The message applies to many other corporations, obviously.
Banner Hangs: Always an excellent way to get visibility. “ExxonMobil=Person?” for instance. Here’s a great example from the Rainforest Action Network.
Occupy Corporate Offices: For the more daring among you, recent anti-foreclosure actions against Bank of America by New Bottom Line might be worth checking out.
Human Banner examples: Endangered Freedoms; Tax the 1%; and Step It Up.
MOLLY reading complete
DV resumes
Actions in reaction to Citizens United v Federal Election Commission are not limited to ‘colorful’ and original and marginal protests by marginal political activists. Some are quite the essence of establishment practice. Consider the following article from last week’s Huffington Post:
MOLLY reads
'Citizens United' Backlash: Montana Supreme Court Upholds State's Corporate Campaign Spending Ban
First Posted: 01/ 4/12 11:24 AM ET Updated: 01/ 4/12 11:27 AM ET
WASHINGTON -- The Montana Supreme Court has put itself on a collision course with the U.S. Supreme Court by upholding a century-old state law that bans corporate spending in state and local political campaigns.
The law, which was passed by Montana voters in 1912 to combat Gilded Age corporate control over much of Montana's government, states that a "corporation may not make ... an expenditure in connection with a candidate or a political party that supports or opposes a candidate or a political party." In 2010, the U.S. Supreme Court, in its landmark Citizens United v. Federal Election Commission decision, struck down a similar federal statute, holding that independent electoral spending by corporations "do not give rise to corruption or the appearance of corruption" that such laws were enacted to combat.
That reasoning -- described by the Citizens United dissenters as a "crabbed view of corruption" -- compelled 23 of the 24 states with independent spending bans to stop enforcing their restrictions, according to Edwin Bender, executive director of the Helena, Mont.-based National Institute on Money in State Politics. Montana, however, stood by its 1912 law, which led several corporations to challenge it as unconstitutional.
By a 5-2 vote this past Friday, the Montana Supreme Court declined to recognize the common understanding that Citizens United bars all laws limiting independent electoral spending. Instead, Chief Justice Mike McGrath, writing on behalf of the majority, called on the history surrounding the state law to show that corporate money, even if not directly contributed to a campaign, can give rise to corruption.
MOLLY reading complete
DV resumes
** ***
So, what IS Citizens United v. Federal Election Commission? And why has it generated so much attention?
MOLLY reads first three paragraphs of NYT article
Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), 558 U.S. ––––, 130 S.Ct. 876 (January 21, 2010), was a landmark decision by the United States Supreme Court holding that the First Amendment prohibits government from placing limits on independent spending for political purposes by corporations and unions. Wikipedia.
Here is a comprehensive report from the New York Times.
January 21, 2010
The New York Times
Justices, 5-4, Reject Corporate Spending Limit
By ADAM LIPTAK
WASHINGTON — Overruling two important precedents about the First Amendment rights of corporations, a bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections.
The 5-to-4 decision was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said that allowing corporate money to flood the political marketplace would corrupt democracy.
The ruling represented a sharp doctrinal shift, and it will have major political and practical consequences. Specialists in campaign finance law said they expected the decision to reshape the way elections were conducted. Though the decision does not directly address them, its logic also applies to the labor unions that are often at political odds with big business.
**** (Material omitted)
The justices in the majority brushed aside warnings about what might follow from their ruling in favor of a formal but fervent embrace of a broad interpretation of free speech rights.
“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, which included the four members of the court’s conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
The ruling, Citizens United v. Federal Election Commission, No. 08-205, overruled two precedents: Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission, a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions.
The 2002 law, usually called McCain-Feingold, banned the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections.
The law, as narrowed by a 2007 Supreme Court decision, applied to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”
The five opinions in Thursday’s decision ran to more than 180 pages, with Justice John Paul Stevens contributing a passionate 90-page dissent. In sometimes halting fashion, he summarized it for some 20 minutes from the bench on Thursday morning.
Joined by the other three members of the court’s liberal wing, Justice Stevens said the majority had committed a grave error in treating corporate speech the same as that of human beings. (Emphasis added).
*** (Material omitted)
The majority opinion did not disturb bans on direct contributions to candidates, but the two sides disagreed about whether independent expenditures came close to amounting to the same thing.
“The difference between selling a vote and selling access is a matter of degree, not kind,” Justice Stevens wrote. “And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.”
Justice Kennedy responded that “by definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”
The case had unlikely origins. It involved a documentary called “Hillary: The Movie,” a 90-minute stew of caustic political commentary and advocacy journalism. It was produced by Citizens United, a conservative nonprofit corporation, and was released during the Democratic presidential primaries in 2008.
Citizens United lost a suit that year against the Federal Election Commission, and scuttled plans to show the film on a cable video-on-demand service and to broadcast television advertisements for it. But the film was shown in theaters in six cities, and it remains available on DVD and the Internet.
The majority cited a score of decisions recognizing the First Amendment rights of corporations, and Justice Stevens acknowledged that “we have long since held that corporations are covered by the First Amendment.”
But Justice Stevens defended the restrictions struck down on Thursday as modest and sensible. Even before the decision, he said, corporations could act through their political action committees or outside the specified time windows.
*** (Material omitted).
MOLLY reading complete.
DV Begins Lecture
Part 2 (of 4): Lecture
The Power of the People: the Law of Laws
The people reign in the American political world like God over the universe. --Tocqueville 71
For most of the history of the Republic, corporations were forbidden to attempt to influence the outcome of elections. Corporate political activity was criminal political activity in every political subdivision. Kentucky’s prohibition on corporate electioneering is actually ensconced in its constitution.
In 2010, the United States Supreme Court swept side the restrictions on corporate support for candidates in elections finding that as ‘persons’ and ‘citizens’ corporations enjoyed federal constitutional rights to influence elections as an exercise of free speech.
If law were physics, how would the scientist explain this discovery? The written text of the law had not changed; the people had not spoken or voted; no law had been amended. So what process is at work?
In an effort to explain the process, a legal scientist might analogize the law to a prism; it has no source of light itself but reflects and redirects light from other sources.
The course you are about to embark upon will examine instances where law functions as a prism, reflecting and redirecting social policy conditions and changes.
Eight discreet areas will command our attention: 1) corporate political activity; 2) school segregation based on race; 3) capital punishment; 4) libel; 5) war powers; 6) enhanced interrogation techniques (aka, torture); 7) sex and marriage; and 8) government’s right to take property from its citizens for public purposes.
In each of the eight areas, we shall see at work the same dynamics at work in the Citizens United decision of the Supreme Court; i.e., after many years of settled and accepted practice and no change in the written laws, a major legal shift occurs.
What change produced the change?
In this course we will look at the role social policy plays in the transformation. The 19th century political philosopher and social critic Alexis de Tocqueville posits that social condition is the fundamental source of most laws: the law of laws.
NICOLE reads
The condition of society is normally the result of circumstances, sometimes of laws, more often than not a combination of these two causes; but, once it is established, we can consider it as the fundamental source of most of the laws, customs and ideas which regulate the conduct of nations: whatever it does not produce, it modifies. In order to become acquainted with the legislation and the manners of a nation we must, therefore, start by studying the social condition. –Tocqueville 58.
NICOLE reading complete
Part 3 (of 4): Logistics
The Book (s)
And that is exactly how this course will begin: by studying the social condition of the United States as reported and described by Tocqueville himself in his masterwork “Democracy in America.” (1835, 1840). Alexis de Tocqueville, Democracy in America (Penguin Classics 2003) (With an Introduction and Notes by Isaac Kramnick) (Cited in the Syllabus as “Tocqueville”). The aim of this book was to reveal American laws. [335].
Democracy in American is a classic, a two book masterpiece written by French aristocrat, political scientist and one of the founders of social science: Alexis de Tocqueville. His work is a tour de force in politics, economics and economic sociology.
The first book was completed in 1835 and the second in 1840 after Tocqueville toured the country on an official visit to study the penal system. He interviewed citizenry, observed how institutions and processes worked, listened to what people said, learned what they thought and watched what they did.
The chief aim of the book was to study American laws. To do so, Tocqueville looked at the soil from which laws sprung, the climate in which they were nurtured and withered—literally and figuratively.
Unlike other political texts that begin with theory, Tocqueville begins with looking at institutions as they functioned in reality. His approach was scientific and is regarded as a forerunner in the social science genre.
The text is dived between discussion of institutions and processes (Book 1)(1835) and economic and social characteristics. (Book 2) (1840).
Volume 1 established Tocqueville as one of the Europe’s great political thinkers.
Tocqueville was right about many things and wrong about many things. We study him not so much as to endorse his views but to study his theses and the processes he discerns. How are laws made?
What is the law of laws?
The Course Plan
What is the objective of the course? This course is designed to introduce the student to the interplay between law and social policy—the civic intersection where culture, social conditions, customs, economics, morals, politics, prejudice and self-interest meet on the way toward formulation of a governing policy that prudently dispenses public and political justice.
Law and social policy encompasses the relationship between customs and statutes, the letter and spirit of the law, the will of the majority and the rights of the minority. It is both current and enduring---the past and present working together.
What is the course about? It is about the sources of law—the confluence of political power, the exigency and temper of the times as well as the more enduring influences of culture, customs, manners and values and priorities of the people. If zeitgeist is the temper of the times law is the temper of the people. The concept of the ‘people’ transcends the numerical majority of the moment.
The Law of Laws
The course is about the essence of law. Where does it come from, why and how does it change? In this course, we will focus on a particular type of change: a change in the application, administration or interpretation of law WITHOUT a corresponding change in the letter of the law.
The ‘gap’ between the letter of the law and the administration of the law is at least as old as Shakespeare’s Measure for Measure where the Duke stopped enforcing the laws that mandated the death penalty for fornication.
Tocqueville tells us that the Puritans that founded the civil society on North American shores in the 17th century reflexively adopted the criminal codes of their country of origin then routinely ignored them—and the criminal laws they did enforce they enforced---are you ready for this—with KINDNESS!!!
Law and social policy are engaged in a perpetual a pas de deux—sometimes one leads and at other times follows. While their separate form is distinct, their function is unified. They dance and function as one even though they are clearly two.
The course follows the path mapped by Tocqueville. In order to become acquainted with the law we will study social conditions and manners.
Ultimate Questions Posed by the Course
Every lecture, every class, every case and text considered in the course raises the question (s): What is the relationship between law and social policy? Does law lead or follow? Is law master or servant, shadow or corpus? Is social policy determined by the people or by the judiciary or by the legislature or by the executive branch, the bureaucracy or by the constitution? Might social policy come from experts, customs, culture, social conditions, world opinion or informed elite?
Class plan: There will be fourteen classes beginning January 9 and ending April 9. Twelve class plans have been prepared (unplanned time allows for productivity through flexibility and the opportunity to review, summarize and talk about the final exam):
The first four classes are introductory and historical and treat the course resources, the three departments of government and twenty-one law and social policy questions considered by Tocqueville in his masterwork Democracy In America (1835, 1840). The ensuing eight classes will cover (in the sequence in which they will be considered): Capital Punishment, Segregation, Libel, Corporate Political Activity, War Powers, Torture and Terrorism, Family and Governmental Takings.
The first four substantive lectures are animated with a focus on judicial power and social policy, the next two on executive branch power and social policy and the final two on legislative power and social policy. Four broad types of law and policy shape the course: ECONOMIC (Takings and Corporate Political Activity) LIBERTY (Libel and Family), THE STATE (War Powers and Enhanced Interrogation) and SOCIETY (Capital
Part 4 (of 4): Class Assignment
Lecture #1: INTRODUCTION: The Power of the People
[January 9, 2012]
The people reign in the American political world like God over the universe. --Tocqueville 71
Is Tocqueville right? Do the people reign like God over the universe? Are some expressions of the popular will more enduring than others? In 1954, what would the people say about integrating schools? Hadn’t the people already spoken to the subject through their laws requiring racial segregation? More recently, California people exercised their collective voice to utter a resounding ‘no’ to same sex marriage. Can that action stand? For over 100 years the people of Kentucky have been on the official record in their constitution prohibiting corporations from using money to influence an election. Now, the United States Supreme Court says that what the people of Kentucky thought was a vice is really a federal constitutional virtue---a First Amendment exercise of free speech. Never mind Kentucky’s Constitution that adopted the worn out, out-dated wisdom set forth in the Italian proverb: when gold speaks every tongue is silent.
______________________________________________
Assignments for Class #1: Introduction: The Power of the People, Money and Property
1. Alexis de Tocqueville, Democracy in America (Penguin Classics 2003) (With an Introduction and Notes by Isaac Kramnick) (Cited in the Syllabus as “Tocqueville”). The aim of this book was to reveal American laws. [335]. The discussion of Tocqueville will extend over the first four classes. Read Section III of the Introduction by Kramnick in its entirety, pages xxiv through xxxvii and pages xliii through xlvii, the concluding part of Section IV. Also read the author’s Introduction (an excellent historical description of the interplay between law and social policy) pp. 11-16: A new political science is needed for a totally new world. [16].
2. Tocqueville Chapter 2 pp. 36-58 (always read the introductory head notes at the beginning of each chapter). This chapter is an overview of the social, cultural, religious mix that the United States is. It sets the course for the course. Many of its specific topics will be treated in more detail over the next three classes: the national character, common language, equality, land, liberty, the cultural differences between north and south, the nature of ‘gold seekers’, the social theory of the United States, the source and object of laws both penal and political, public education, religion, the spirit of religion and liberty (in opposition or support?) the relationship between law and social conditions.
3. Tocqueville Chapter 3 “Social Conditions” and their impact on the laws pp. 58-67 especially the role the laws of inheritance play in the progress of human affairs. I am not even aware of a country where the love of money has a larger place in men’s hearts or where they express a deeper scorn for the theory of a permanent equality of possessions. [64].
4. Tocqueville Chapter 4 pp. 68-71 “The Sovereignty of the People”: The people reign in the American political world like God over the universe. [71].The collective will of the nation, two impediments to progress before independence, its role in all things.
5. Chemerinsky Chapter 1, Section 1.4 “How Should the Constitution Be Interpreted?” pp.15-26. END
The National Character of the American Union (Chapter 2)
As Tocqueville toured America, nothing stuck his attention more forcibly than the equality of social conditions. He was amazed at the extraordinary influence this fundamental condition exerted upon the progress of society. Social conditions in America gave direction to public attitudes, provided a ‘certain style to the laws, fresh guidelines to governing authorities, and individual habits to those governed.” (Tocqueville, Introduction).
Soon Tocqueville realized that social conditions influenced not only laws and political customs but civil society itself: “It forms opinions, creates feelings, proposes ways of acting, and transforms anything it does not directly instigate itself.” (T. Introduction).
Tocqueville masterwork, Democracy in America, begins with an attempt to describe the contours of an emerging national character of a totally new world; a world built on equality of conditions and populated by ordinary people with no common past, no shared roots, no common ideas and no collective national character.
The key to his entire work is laid out in Chapter Two where Tocqueville described the emerging, collective national character of the people who had settled the American Union. This chapter is an overview of the social, cultural, religious mix that the United States was in the 19th century. Chapter Two sets the course for the course. Many of its specific topics will be treated in more detail over the next three classes: the national character, the importance of a common language, equality in all of its iterations, land, liberty, the cultural differences between north and south, the nature of ‘gold seekers’, the social theory of the United States, the source and object of laws both penal and political, public education, religion, the spirit of religion and liberty (in opposition to or in support of one another?) the relationship between law and social conditions.
Language, government by common consent, sovereignty of an austere and argumentative people who were preoccupied with religion, equality, land and liberty are the broad features of the American family. The family had two branches: the gold seekers who settled the south and the more austere, inventive and enterprising people of New England who brought with them highly developed principles of order and morality.
It was in New England, in the north, that the social theory of the United States was brought together. The pillars of American social theory were: freedom, equality, liberty, justice, religion and duty, including a collective duty of society to its members (for example, in public education). In fact the early laws regarding education reveal the original character of American civilization in its clearest and most flattering light. Schools were established in every township and the citizens were obligated to support them under or face steep fines.
“I have expressed enough to characterize Anglo-American civilization in its true colors. This civilization is the result (and this is something we must always bear in mind) of two quite distinct ingredients which anywhere else have often ended in war but which Americans have succeeded somehow to meld together in wondrous harmony; namely, the spirit of religion and the spirit of liberty.’ (p.55)….. ”far from harming each other, these two inclinations, despite their apparent opposition, seem to walk in mutual agreement and support.” p 56.
Social Condition Produces Laws: (Chapter 3)
The condition of society is normally the result of circumstances, sometimes of laws, more often than not a combination of these two causes; but, once it is established, we can consider it as the fundamental source of most of the laws, customs and ideas which regulate the conduct of nations: whatever it does not produce, it modifies. In order to become acquainted with the legislation and the manners of a nation we must, therefore, start by studying the social condition. –Tocqueville 58.
Tocqueville Chapter 3 “Social Conditions” and their impact on the laws pp. 58-67 especially the role the laws of inheritance play in the progress of human affairs. I am not even aware of a country where the love of money has a larger place in men’s hearts or where they express a deeper scorn for the theory of a permanent equality of possessions. [64].
In the American Union, the basic social condition is democratic equality. There were never any seeds of aristocracy planted in New England. The intellect was the source of influence among men in New England. Those who acquired power over others and had reputations for virtue and wisdom would have been aristocrats if their status had been permanently transferable from father to son.
Aristocracy
Things were different south of the Hudson River where great landed aristocrats founded estates, brought with them to America the English laws of succession and aristocratic principles. But they lacked patronage and were therefore, not aristocrats but they gave the American revolution its greatest leaders.
Laws of Inheritance & Money
Tocqueville registers astonishment that commentators have not written more about the great impact the laws of inheritance have on social progress. (See page 60). It was the laws of inheritance that were the last step on the way to equality. By abolishing primogeniture and allowing ALL children to share equally there are two effects: 1) fragmentation of land into smaller, decreasing parcels and 2) the minds and emotions of the owners are freed and severed from the land. “The law of inheritance has reduced all men to one level.” P 64. Let Tocqueville describe it in his own words in describing the vast estates founded in New York:
“The first generation having passed away, estates began to be parceled out; and the change became more and more rapid with the progress of time. And now, after a lapse of a little more than sixty years, the aspect of society is totally altered; the families of the great landed proprietors are almost all commingled with the general mass. In the state of New York, which formerly contained many of these, there are but two who still keep their heads above the stream; and they must shortly disappear. The sons of these opulent citizens have become merchants, lawyers, or physicians. Most of them have lapsed into obscurity. The last trace of hereditary ranks and distinctions is destroyed; the law of partition has reduced all to one level.” Tocqueville.
Love of Money
“I am not even aware of a country where the love of money has a larger place in men’s hearts or where they express a deeper scorn for the theory of a permanent equality of possessions.” (64). This is a unique aspect of the national character. (64).
Education
Tocqueville: “The Americans can devote to general education only the early years of life. At fifteen they enter upon their calling, and thus their education generally ends at the age when ours begins. If it is continued beyond that point, it aims only towards a particular specialized and profitable purpose; one studies science as one takes up a business; and one takes up only those applications whose immediate practicality is recognized. “[Education must be useful].
Education is a means to getting a job. Education is useful.
Intellectuals
“There is no class, then, in America which passes to its descendants the love of intellectual pleasures along with its wealth or which holds the labors of the intellect in high-esteem.’ (65).
Freedom and Equality: Equality is Their Idol
BUT a warning---EQUALITY and FREEDOM are not good travelling companions and are in ultimate opposition to each other.
Tocqueville observed there are only two methods of establishing equality: bring everybody up or take everybody down].
Tocqueville: “There is, in fact, a manly and lawful passion for equality that incites men to wish all to be powerful and honored. This passion tends to elevate the humble to the rank of the great; but there exists also in the human heart a depraved taste for equality, which impels the weak to attempt to lower the powerful to their own level and reduces men to prefer equality in slavery to inequality with freedom. Not that those nations whose social condition is democratic naturally despise liberty; on the contrary, they have an instinctive love of it. But liberty is not the chief and constant object of their desires; equality is their idol: they make rapid and sudden efforts to obtain liberty and, if they miss their aim, resign themselves to their disappointment; but nothing can satisfy them without equality, and they would rather perish than lose it.”
But Americans have some important saving graces that have allowed them to balance the two and maintain the sovereignty of the people. (Might the constitution be one?)
The Sovereignty of the People (Chapter 4): The Law of Laws
“The people reign in the American political world like God over the universe. It is the cause and aim of all things, everything comes from them and everything is absorbed in them.”
Two impediments checked the progress of the power of the people before independence: 1) the laws of inheritance 2) the influence of the mother country (so it was only apparent in local laws).
The Law of Laws
An aristocracy of sorts in the form of influence existed in New England based upon education and intellect and in the south based on wealth and land ownership. But a rapid disintegration began as soon as the revolution began. The change in the laws of inheritance was the final step needed to make the sovereignty of the people the law of laws.
The power of the people leads to some problems we will consider in the next lecture but in this lecture we may pause to ask:
What would Tocqueville think of Citizens United? What would Tocqueville think about the wisdom of allowing corporations to influence the outcome of elections? Is money speech?
How Shall the Constitution Be Interpreted? Is Judicial Review Consistent with Majority Rule?
So let return to where we began: with the Supreme Court setting aside the laws prohibiting corporations from influencing the outcome of elections. How was this done? By reading the constitution in a new way.
The Need for Interpretation
Two Theories of Interpretation: Originalism and NonOriginalism.
Originalists demand clearly expressed or implied in the text or the original intent. Nonoriginalists approve of protection of rights not clearly stated or even intended (for example, elimination of racial segregation). They believe the constitution can be changed by either amendment or interpretation. The two schools of thought also disagree on HOW the court should decide meaning. Our textbook gives an example involving Justice Thomas’s consideration of the ‘knock and announce rule’ under the 4th Amendment.
Now, as those of you know who have completed con-law, there is no such right expressly set forth in the 4th amendment. But by resorting to history and especially the state of the law in 1791, Justice Thomas ruled the procedure is implied. For a non originalist the historical approach is interesting and convenient but entirely unnecessary as such a right is clearly essential to the 4th amendment regardless what the framers intended. Non originalists might call the constitution a ‘living constitution’.
There are gradations of the two positions, each of which has enjoyed support by the court at various times
The arguments pro and con.
Originalists: the very nature of interpretation requires meaning to be based on text or intent. Everything else is a gloss and leads to the second argument: it constrains the power of unelected judges in a democratic society.
This latter argument is based on the premise that a democratic society is based on majority rule. But is it? And is the constitution really intended to be a pro-majority document? This is at the core of every debate on constitutional interpretation. Should unelected judges (or judges elected by a small segment of the population) overturn the decisions of popularly elected officials and even the decision of the people themselves (for example, in adopting constitutional amendments.
Non Originalists: there are three arguments used to support the non-originalist position: 1) it is more desirable to allow the constitution to evolve by interpretation than by amendment; for example, the framers of the 14th amendment on equal protection clearly did NOT intend for it to protect women from discrimination; but judicial decisions have ruled that it does; 2) it is impossible to discover original intent; intent can be deduced at various levels of abstraction. At the highest level of abstraction, the drafters intended liberty and equality and almost anything could be justified by invoking these two overarching values. 3) The flexible approach was actually intended by the framers.
It is one of the blessings and benefits of our course that we do not have to join or resolve the debate on any of these important issues now. We can
simply and thoughtfully note the pros and cons and save our opinions for another day or time.
DV: January 9, 2012
---Class Lecture Ends---
Bovem habet in lingua. He has an ox on his tongue. (Although this saying makes sense if you think of an actual ox which would weigh down your tongue, in its ancient usage the "ox" referred to coins that were stamped with the image of an ox. In other words, someone has been bribed to stay silent. Compare this variant phrase: Bovem in lingua fert, "He's carrying an ox on his tongue.")
Money doesn’t stink.
Money deodorizes.
When gold speaks all tongues are silent.
Money answereth all things.
Monday, January 2, 2012
Law & Social Policy Syllabus 2012
January 2, 2012
There is hardly a political question in the United States which does not sooner or later turn into a judicial one.
--Tocqueville
LAW & SOCIAL POLICY
Spring 2012 / Louis D. Brandeis School of Law / University of Louisville
Donald Vish, lecturer
________________________________
Course Description
This course will focus on law as it shapes or reflects social policy not as it facilitates the resolution of disputes between private parties. This course will examine the relationship of law to social, political, cultural and economic conditions in the United States.
Overview of Classes
There will be twelve topics covered in fourteen classes. Here is an overview:
Introduction
1) The People and Social Policy. Tocqueville observations of democracy in America, The Federalist Papers, the antecedents and hallmarks of United States social and legal policy; separation and balance of powers: the social, civic and political ethos of the United States; the social contract theories of Hobbes, Locke and Rousseau.
2) The Judiciary and Social Policy
3) The Legislature and Social Policy
4) The President and Social Policy along with twenty-one questions about Tocqueville ‘s views on the source of law in a democracy, the role of the legal profession, judicial power, customs, religion, education, race, majority rule, a free press, criminal laws, executive power, possible tyranny of the legislature, individualism, family, material prosperity and love of money, how a new aristocracy may emerge in the United States, how democracy affects wages and why regulation is needed, the equality of men and women, waging war in a democracy, the main objective of law-making in a democracy and the basic social tableaux of the United States.
The Judiciary
5) Capital Punishment and Social Policy: An Evolving Standard of Decency
6) Race, National Origin, School Segregation: Law & Policy, A Pas De Deux
7) Libel: Weaving Together Law and Policy or is it Policy and Law?
8) Corporate Political Activity: Social Policy, Public Policy or Legal Policy?
The Presidency
9) War Powers: Who’s Policy?
10) Enhanced Interrogation: Law or Policy or Neither?
The Legislature
11) Sex, Marriage, Defense of Marriage Act: Limits on Majority Rule
12) The Takings Clause: Economics as Policy
Objective of the Course
The condition of society is normally the result of circumstances, sometimes of laws, more often than not a combination of these two causes; but, once it is established, we can consider it as the fundamental source of most of the laws, customs and ideas which regulate the conduct of nations: whatever it does not produce, it modifies. In order to become acquainted with the legislation and the manners of a nation we must, therefore, start by studying the social condition. –Tocqueville 58.
What is the objective of the course? This course is designed to introduce the student to the interplay between law and social policy—the civic intersection where culture, social conditions, customs, necessity, economics, morals, politics, prejudice and self-interest meet on the way toward formulation of a governing policy that prudently dispenses public and political justice.
Law and social policy encompasses the relationship between customs and statutes, the letter and spirit of the law, the will of the majority and the rights of the minority. It is both current and enduring---the past and present working together.
What is the course about? It is about the sources of law—the confluence of political power, the exigency and temper of the times as well as the more enduring influences of culture, customs, manners and values and priorities of the people. If zeitgeist is the temper of the times law is the temper of the people. The concept of the ‘people’ transcends the numerical majority of the moment.
Law and social policy are engaged in a perpetual a pas de deux—sometimes one leads and at other times follows. While their separate form is distinct, their function is unified. They dance and function as one even though they are clearly two.
The course follows the path mapped by Tocqueville. In order to become acquainted with the law we will study social conditions and manners.
Ultimate Questions Posed by the Course
Every lecture, every class, every case and text considered in the course raises the question (s): What is the relationship between law and social policy? Does law lead or follow? Is law master or servant, shadow or corpus? Is social policy determined by the people or by the judiciary or by the legislature or by the executive branch or by the bureaucracy or by the constitution? Might social policy come from experts, customs, culture, social conditions, world opinion, necessity, crisis or an informed elite? Is justice the ultimate aim of both law and social policy?
Class Dates:
January: 9,16, 23, 30
February: 6, 13, 20, and 27
March: 5, 12-18 (Spring Break), 19, and 26
April: 2, 9
Course Syllabus
Basis of grading: There will be a final exam comprised of five essay questions each worth 20 points. The questions will invite straightforward expository prose responses (there are no hidden or subtle issues lurking in the questions). Each question will ask ‘what’ or ‘why’ or both or will begin with instructions to ‘discuss’ or ‘evaluate’ or ‘describe’ or ‘compare’ or ‘provide examples of’. Each question will invite the student to demonstrate both reportorial and analytical skills based on memory, preparation, analysis, critical thinking and command of class presentations. Good reportage will earn a “C” while superb insight and analysis will earn an “A”. [See the attached Appendix for more elaboration on the grading criteria].
You may contact me directly at dvish@middreut.com or you may communicate through a class ombuds committee of three students that will be appointed to facilitate presentation of any complaints, suggestions or requests that an individual student may not want to present directly.
Class plan: There will be fourteen classes beginning January 9 and ending April 9. Twelve class plans have been prepared (unplanned time allows for productivity through flexibility and the opportunity to review, summarize and talk about the final exam): The first four classes are introductory and historical and treat the course resources, the three departments of government and twenty one law and social policy questions considered by Tocqueville in his master work Democracy In America (1835, 1840). The ensuing eight classes will cover (in the sequence in which they will be considered): Capital Punishment, Segregation, Libel, Corporate Political Activity, War Powers, Torture and Terrorism, Family and Governmental Takings.
The first four substantive lectures are animated with a focus on judicial power and social policy, the next two on executive branch power and social policy and the final two on legislative power and social policy. Four broad types of law and policy shape the course: ECONOMIC (Takings and Corporate Political Activity) LIBERTY (Libel and Family), THE STATE (War Powers and Enhanced Interrogation) and SOCIETY (Capital Punishment and Segregation).
Textbooks
1) Erwin Chemerinsky, Constitutional Law: Principles and Policies (4th Edition, Aspen Student Treatise Series, 2011). ISBN 978-0-7355-9808-3.
2) The Federalist Papers, Introduction and Notes by Charles R. Kesler, Edited by Clinton Rossiter (Signet Classic, 1999) First Signet Classic Printing, April 2003.
3) Alexis de Tocqueville, Democracy in America (Penguin Classics, 2003) ISBN-13: 978-0-140-44760-6.
4) Josephine Clara Goldmark (1877-1950); Hobbes, Locke and Rousseau on the social contract.
DV
Justice is the end of government. It is the end of civil society. It ever has been, and ever will be, pursued until it be obtained, or until liberty be lost in the pursuit. –Madison, The Federalist Papers No. 51 p. 321.
[Class Plans Follow]
Lecture #1: INTRODUCTION: The Power of the People
[January 9, 2012]
The people reign in the American political world like God over the universe. --Tocqueville 71
______________________________________________
Assignments for Class #1: Introduction: The Power of the People, Money and Property
1. Alexis de Tocqueville, Democracy in America (Penguin Classics 2003) (With an Introduction and Notes by Isaac Kramnick) (Cited in the Syllabus as “Tocqueville”). The aim of this book was to reveal American laws. [335]. The discussion of Tocqueville will extend over the first four classes. Read Section III of the Introduction by Kramnick in its entirety, pages xxiv through xxxvii and pages xliii through xlvii, the concluding part of Section IV. Also read the author’s Introduction (an excellent historical description of the interplay between law and social policy) pp. 11-16: A new political science is needed for a totally new world. [16].
2. Tocqueville Chapter 2 pp. 36-58 (always read the introductory head notes at the beginning of each chapter). This chapter is an overview of the social, cultural, religious mix that the United States is. It sets the course for the course. Many of its specific topics will be treated in more detail over the next three classes: the national character, common language, equality, land, liberty, the cultural differences between north and south, the nature of ‘gold seekers’, the social theory of the United States, the source and object of laws both penal and political, public education, religion, the spirit of religion and liberty (in opposition or support?) the relationship between law and social conditions.
3. Tocqueville Chapter 3 “Social Conditions” and their impact on the laws pp. 58-67 especially the role the laws of inheritance play in the progress of human affairs. I am not even aware of a country where the love of money has a larger place in men’s hearts or where they express a deeper scorn for the theory of a permanent equality of possessions. [64].
4. Tocqueville Chapter 4 pp. 68-71 “The Sovereignty of the People”: The people reign in the American political world like God over the universe. [71].The collective will of the nation, two impediments to progress before independence, its role in all things.
5. Chemerinsky Chapter 1, Section 1.4 “How Should the Constitution Be Interpreted?” pp.15-26. END
Lecture #2: The Judiciary
[January 16, 2012]
…there is no liberty if the power of judging be not separated from the legislative and executive powers. The Federalist Papers, No. 78: The Judiciary Department (Hamilton)
…an American judge is dragged, despite himself, on to the political field.Tocqueville 121
There is hardly a political question in the United States which does not sooner or later turn into a judicial one. Tocqueville 315
…the idea that gold and silver mines are the source of national wealth: a fatal idea which has done more to impoverish those European nations who were enslaved by it and has destroyed more men in America than the united influence of war and bad laws. Tocqueville 41
______________________________________
Assignments for Class #2:
1. The Federalist Papers, No. 78: The Judiciary Department (Hamilton) pp. 463-471.
2. Alexis De Tocqueville, Democracy in America (Penguin Classics, 2003) Chapter 6 Judicial Power in the United States…pp. 116-124; The Federal Courts of Justice pp.161-177 (especially the head notes of each section); page 315. The three characteristics of judicial power, the political power of the judge, the power to declare laws unconstitutional [here is the threshold of law and social policy].
3. Tocqueville Chapter 8 “The Federal Courts of Justice” pp. 161-177.
4. Marbury v. Madison 5 U.S. 137 (1803)
5. Erwin Chemerinsky, Constitutional Law: Principles and Policies (4th Edition, Aspen Publishers, New York), Chapter 2, The Federal Judicial Power pages 32-37, 43-45, 52 (Advisory Opinions) 130-135 (Political Questions).
Laws are always unstable unless they are founded upon the manners of a nation; manners are the only durable and resisting power in a people. -Tocqueville Ch. XV 319.
End
Lecture #3: The Legislature
[January 23, 2012]
It is to a legislature thus constituted that almost all the authority of the government has been entrusted. Tocqueville Ch. XV
The executive power in our government is not the only, perhaps not even the principal, object of my solicitude. The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period. Tocqueville quoting Thomas Jefferson Ch. XV
____________________________________________________
Assignments for Class #3:
1. Chemerinsky Chapter 3 The Federal Legislative Power Section 3.1 pp. 238-240; Section 3.3.3—3.3.5 Commerce Clause Before and After 1937 pp. 251-269.
2. U.S. v. Lopez 514 U.S. 549 (1995) (limits of commerce clause found). Confer Chemerinsky pp.269-272.
3. Can Congress overrule the Supreme Court? Chemerinsky Section 3.6.2 “What is the Scope of Congress’s Power?” pp. 299-307.
4. Tocqueville Chapter 8 “The Federal Constitution: Legislative Powers” pp. 137-140.
5. The Federalist Papers No. 10 (Madison) on factions (compare with Tocqueville on associations) pp. 700-702; No. 47 (Madison) and No. 51 (Madison) on checks and balances, separation of powers.
6. Akers v. Baldwin, Ky. 736 S.W.2d 294 (1987); 1988 Amendment to Kentucky Constitution (Limits the mining of coal conveyed by any broad-form deed to methods of coal extraction utilized in the area at the time the deed was signed).
Hence the majority in the United States possess immense actual power and a power of opinion almost as great; and when once it has made up its mind over a question, there are, so to speak, no obstacles which might, I will not say halt, but even retard its onward course long enough to allow it time to heed the complaints of those it crushes as it goes by. The consequences of this state of affairs are dire and dangerous for the future. –Tocqueville 290.
End
Lecture #4: The Presidency and Twenty-One-Policy Issues Observed by Tocqueville
[January 30 2012]
The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11. John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, September 25, 2001.
____________________________________________
Assignments for Class #4:
1. The Federalist Papers No. 69 (Hamilton) “The Real Character of the Executive” pp.—414-421.
2. Tocqueville Chapter 8 “The Federal Constitution: The Executive Power” pp.-141-161.
3. Tocqueville commentary on: (1) fear of legislative power (288, 304-305), (2) tyranny of the majority (68, 71, 223-224, 287-305, 603,747), (3) war (755-757), (4) the law of property and inheritance (60-64, 840-841), (5) a free press (213, 222, 811-812), (6) judicial power (122, 314, 812), (7) love of money (41,64, 616-618, 627-28, 713, 721-722, 788), (8) how a new aristocracy may emerge in America (645-648), (9) lawyers (…lawyers form the only enlightened class not distrusted by the people. 314, 307-315), (10) wages (675-677) and work (639), (11) women (687, 692, 696, 700), (12) main objective of legislation and legislator (49, 817), (13) the source of laws (49, 57, 58, 71, 319, 335, 357, 362), (14) freedom and equality (583-587), (15) individualism (583-586-91, 683, 780), (16) religion (54-56, 336-352, 636), (17) public education American style (53-54, 65 [job preparation], 352-357, 537), (18) the social theory of the United States (42-47), (19) voluntary associations [compare with The Federalist Papers No. 10 (Madison on Factions] (219-227, 595-609, 700-702), (20) race (398-426); (21) manners (705).
The love of comfort has become the dominant taste of the nation. Tocqueville 618.
I have already said enough to put Anglo-American civilization in its true light. It is the product of two perfectly distinct elements which elsewhere have often been at war with one another but which in America it was somehow possible to incorporate into each other, forming a marvelous combination. I mean the spirit of religion and the spirit of freedom. . . . Far from harming each other, these two apparently opposed tendencies work in harmony and seem to lend mutual support. –Tocqueville 55-56.
O tempora, o mores! /O, the times, O, the customs! –Cicero
Lecture #5: Capital Punishment
[February 6, 2012]
Never was the death penalty more frequently prescribed and never more rarely enforced. [On the original 17th century Puritan codes in America] Tocqueville 49
No Country administers its criminal law with more kindness than the United States. While the English seem bent on carefully preserving in their penal legislation the bloody traces of the Middle Ages, the Americans have almost eliminated the death penalty from their codes. Tocqueville 653 (1840)
___________________________________
Assignments for Class #5:
1. Furman v. Georgia 408 U.S. 238 (1972).
2. Gregg v. Georgia 428 U.S. 153 (1975); Woodson v. North Carolina 428 U.S. 280 (1976).
3. Herrera v. Collins, 506 U.S. 390 (1993) (Justice Blackmun dissenting).
4. Callins v. Collins (Justice Blackmun dissenting) 510 U.S. 1141 (1994).
5. Atkins v. Virginia 536 U.S. 304 (2002). Give special attention to the METHODS for determining the evolving standard of decency. Is this a template for law and social policy working together?
6. Roper v. Simmons 543 U.S. 551 (2005).
7. Kennedy v. Louisiana 554 U.S. 47 (2008).
8. Baze v. Rees 553 U.S. 35 (2008) see opinions of Justices Stevens, Scalia and Thomas on cruel and unusual punishment.
In republican government, it is in the nature of the constitution for judges to follow the letter of the law Montesquieu, The Spirit of the Laws (1748) page 76.
End
Lecture #6: Race
[February 13, 2012]
His son is excluded from the school where the sons of Europeans come to be educated. At the theatre, any amount of gold could not buy him the right to take his seat beside his former master; in hospitals he lies apart. The black is allowed to pray to the same God as whites but not at the same altars. Tocqueville 402
Americans have granted their judges the right to base their decisions upon the constitution rather than upon the laws. –Tocqueville 118
A lengthy war in a democratic country places freedom under threat. –Tocqueville 755
_______________________________________
Assignments for Class #6:
1. Dred Scott v. Sandford 60 U.S. 393 (1857).
2. Plessy v. Ferguson 163 U.S. 537 (1896).
3. Brown v. Board of Education 347 U.S. 483 (1954).
4. Korematsu v. U.S. 214 (1944). [Also germane to Lecture #10].
5. Tocqueville “The Position of the Black Race in the United States” pp.398-426.
6. The Federalist Papers No. 54 (Madison) on why slaves are counted in the census for purposes of congressional representation pp. 334-338.
7. Chemerinsky Chapter 9, Section 9.1.1 pp.684-685, 691 (first two paragraphs only), Section 9.3.1 “Race Discrimination” pp. 706-726.
I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change with the change of circumstances, institutions must advance also to keep pace with the times. –Thomas Jefferson
End
Lecture #7: Libel
[February 20, 2012]
In order to enjoy the priceless advantages guaranteed by press freedom, one must submit to the unavoidable evils it produces. --Tocqueville 213
The power of the periodical press is second only to that of the people. --Chapter XI 217
The press is by far the most effective democratic instrument of freedom. –Tocqueville 8 12
_____________________________
Assignments for Class #7:
1. Tocqueville “The Freedom of Press in the United States” Vol. 2, Chapter 3, pp.209-219.
2. The Federalist Papers No. 84 (Hamilton) (arguing against a bill of rights) on liberty of the press (513).
3. Chemerinsky “First Amendment Limits on Tort Liability” pp. 1078-1088, 1090-1091; Section 6.3.1 “Rejection of Application Before Civil War” pp. 503-509.
4. New York Times v. Sullivan 376 U. S. 254 (1964).
5. Curtis v. Butts 388 U. S. 130 (1967).
6. Gets v. Welch 418 U. S. 323 (1974).
7. Hustler Magazine v. Falwell 485 U. S. 46 (1988).
8. Dun & Bradstreet v. Greenmoss Buildings, Inc. 472 U. S. 749 (1985).
From Cicero we learn there were few capital punishments in the twelve tables but libel was one. –Addison, The Spectator No. 451.
… there is no freedom of thought in America. –Tocqueville 299. END
Lecture #8: Corporate Political Activity
[February 27, 2012]
The business aristocracy seldom lives among the industrial population it manages; it aims not to rule them but to use them. –Tocqueville 648
Assignments for Class #8:
1. Tocqueville, “How An Aristocracy May Emerge from Industry,” Vol. 2, Chapter 20, pp. 645-648.
2. Austin v. Michigan Chamber of Commerce 494 U.S. 652 (1990): corporate wealth can unfairly influence elections [494 U.S. at 660]. REVERSED in….
3. Citizens United v. Federal Election Commission 130 S. Ct. 876 (2010).
4. Kentucky Constitution (1890) Section 151 (Corporation not to use money or other thing of value to influence election).
5. Chemerinsky, Chapter 11, Section 11.3 “Is Corporate Spending Protected” pp. 1117-1121; “Spending Money as Political Speech pp.1103-1116.
Generally speaking, I think the industrial aristocracy which we see rising before our eyes is one of the most harsh ever to appear on the earth; but at the same time, it is one of the most restrained and least dangerous. However, this is the direction in which the friends of democracy should constantly fix their gaze; for if ever aristocracy and the permanent inequality of social conditions were to infiltrate the world once again, it is predictable that this is the door by which they would enter. –Tocqueville 648
End
Lecture #9: War Powers
[March 5, 2012]
There are two things it will always be difficult for a democratic nation to do: beginning and ending a war. Tocqueville 755
A lengthy war in a democratic country places freedom under threat. Tocqueville 755
In America, conscription is unknown; men are enlisted for payment. Compulsory recruitment is so alien to the idea and so foreign to the customs of the people of the United States that I doubt whether they would ever dare to introduce it into the law. Tocqueville 260
In a time of war, the law falls silent. --Cicero
___________________________
Assignments for Class #9:
1. Chemerinsky Chapter 3 Section 3.5.1 “War Powers” pp. 290-291; Chapter 4 Section 4.1 “Inherent Powers” pp.343-348; 4 Section 4.3 “Executive Privilege” p.362; Section 6.3 “War Powers” pp. 381—392 (including presidential power and the war on terrorism, detentions, military tribunals).
2. Tocqueville Vol. 2 Part 3 Chapter 22 “Why Democratic Nations Have a Natural Desire for Peace and Why Democratic Armies Naturally Seek War” pp. 750—757; Chapter 23 “A Few Remarks on War in Democracies” pp. 767-773.
3. The Federalist Papers No. 23, 24, 25, 26, 27 (Hamilton) pp. 148-173.
4. The Federalist Papers No. 69 (Hamilton) on executive branch power pp.414-416 only; and No. 74 (Hamilton) pp. 445-446.
Montesquieu was cited more by the American founders than any source except the Bible. He was a powerful influence on James Madison, the “Father of the Constitution” persuading him that freedom and stability required a clearly defined and balanced separation of governmental powers.
Spring Break March 12-18
Lecture #10: Enhanced Interrogation
[March 19, 2012]
All those who wish to destroy freedom within a democratic nation should realize that the most reliable and the most rapid means of achieving it is war. --Tocqueville p.756
The clatter of arms drowns out the voice of the law. --Thoreau
Silent enim leges inter arma. --Cicero
____________________________
Assignments for Class #10:
1. Federalist Papers No. 34 and No. 41 (Hamilton) cited by John Yoo.
1. Memorandum of John C. Yoo for the President (this memo has been withdrawn by the current Administration as not reflective of law or policy of the United States).
THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM
The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.
The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.
The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.
September 25, 2001
MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT By John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel
Lecture #11: Family
[March 26, 2012]
I hold it to be an impious and detestable maxim that, politically speaking, the people have a right to do anything; and yet I have asserted that all authority originates in the will of the majority. Am I, then, in contradiction with myself? Tocqueville 292.
It is the very essence of democratic government that the power of the majority should be absolute. –Tocqueville 287
___________________________
Assignments for Class #11: Marriage, Procreation and Sexual Orientation
1. Meyer v. Nebraska 262 U.S. 390 (1923).
2. Loving v. Virginia 388 U.S. 1 (1967).
3. Goodrich v. Dept. of Pub. Health 790 N.E.2d 941 (MA. 2003).
4. Buck v. Bell 274 U.S. 200 (1927).
5. Skinner v. Oklahoma 316 U.S. 535 (1942).
6. Bowers v. Hardwick 478 U.S. 186 (1986).
7. Romer v. Evans 517 U.S. 620 (1996).
8. Lawrence v. Texas 539 U. S. 558 (2003).
9. Chemerinsky Chapter 9 Section 9.7.4 “Discrimination Based on Sexual Orientation” pp.807-809.
10. Chemerinsky Chapter 10, Section 10.2 “The Right to Marry” pp. 818-821 (and cases cited in Section 10.2.1 on Defense of Marriage Act and California’s Proposition 8) (Give special thought to whether the executive branch can refuse to defend a congressional law); Section 10.3 “The Right to Procreate” pp. 829, 833-834; Section 10.4 “Sexual Activity and Orientation” pp. 866-868.
END
Lecture #12: The Takings Clause
[April 2, 9, 16, 2012]
Thus it is that the effect of democracy is not to impose certain manners on men but, in a sense, to stop them having any at all. –Tocqueville p. 705
…usually the love of wealth lies at the heart of Americans’ actions…--Tocqueville 713
_________________________________
Assignments for Class #12:
1. Lochner v New York 198 U.S. 45 (1905) (limit on max work hours).
2. Muller v. Oregon 208 U.S. 412 (1908) (Brandeis Brief).
3. Pennsylvania Coal v. Mahon 260 U.S. 415 (1922).
4. Keystone Bit. Coal v. Benedictus 480 U.S. 470 (1987).
5. Eastern Industries v. Apfel 524 U.S. 498 (1998) (Coal Act).
6. Berman v. Parker 348 U.S. 26 (1954).
7. Kelo v. City of New London 125 S. Ct. 2655 (2005) (economic development).
8. Nollan v. California Coastal Comm. 483 U.S. 825 (1987) (beach access).
9. Chemerinsky Chapter 8, Section 8.4 “The Takings Clause” p. 656, “What is a Taking for Public Use” pp.678-681.
April 16th is last class
End. Janaury 2, 2012.
There is hardly a political question in the United States which does not sooner or later turn into a judicial one.
--Tocqueville
LAW & SOCIAL POLICY
Spring 2012 / Louis D. Brandeis School of Law / University of Louisville
Donald Vish, lecturer
________________________________
Course Description
This course will focus on law as it shapes or reflects social policy not as it facilitates the resolution of disputes between private parties. This course will examine the relationship of law to social, political, cultural and economic conditions in the United States.
Overview of Classes
There will be twelve topics covered in fourteen classes. Here is an overview:
Introduction
1) The People and Social Policy. Tocqueville observations of democracy in America, The Federalist Papers, the antecedents and hallmarks of United States social and legal policy; separation and balance of powers: the social, civic and political ethos of the United States; the social contract theories of Hobbes, Locke and Rousseau.
2) The Judiciary and Social Policy
3) The Legislature and Social Policy
4) The President and Social Policy along with twenty-one questions about Tocqueville ‘s views on the source of law in a democracy, the role of the legal profession, judicial power, customs, religion, education, race, majority rule, a free press, criminal laws, executive power, possible tyranny of the legislature, individualism, family, material prosperity and love of money, how a new aristocracy may emerge in the United States, how democracy affects wages and why regulation is needed, the equality of men and women, waging war in a democracy, the main objective of law-making in a democracy and the basic social tableaux of the United States.
The Judiciary
5) Capital Punishment and Social Policy: An Evolving Standard of Decency
6) Race, National Origin, School Segregation: Law & Policy, A Pas De Deux
7) Libel: Weaving Together Law and Policy or is it Policy and Law?
8) Corporate Political Activity: Social Policy, Public Policy or Legal Policy?
The Presidency
9) War Powers: Who’s Policy?
10) Enhanced Interrogation: Law or Policy or Neither?
The Legislature
11) Sex, Marriage, Defense of Marriage Act: Limits on Majority Rule
12) The Takings Clause: Economics as Policy
Objective of the Course
The condition of society is normally the result of circumstances, sometimes of laws, more often than not a combination of these two causes; but, once it is established, we can consider it as the fundamental source of most of the laws, customs and ideas which regulate the conduct of nations: whatever it does not produce, it modifies. In order to become acquainted with the legislation and the manners of a nation we must, therefore, start by studying the social condition. –Tocqueville 58.
What is the objective of the course? This course is designed to introduce the student to the interplay between law and social policy—the civic intersection where culture, social conditions, customs, necessity, economics, morals, politics, prejudice and self-interest meet on the way toward formulation of a governing policy that prudently dispenses public and political justice.
Law and social policy encompasses the relationship between customs and statutes, the letter and spirit of the law, the will of the majority and the rights of the minority. It is both current and enduring---the past and present working together.
What is the course about? It is about the sources of law—the confluence of political power, the exigency and temper of the times as well as the more enduring influences of culture, customs, manners and values and priorities of the people. If zeitgeist is the temper of the times law is the temper of the people. The concept of the ‘people’ transcends the numerical majority of the moment.
Law and social policy are engaged in a perpetual a pas de deux—sometimes one leads and at other times follows. While their separate form is distinct, their function is unified. They dance and function as one even though they are clearly two.
The course follows the path mapped by Tocqueville. In order to become acquainted with the law we will study social conditions and manners.
Ultimate Questions Posed by the Course
Every lecture, every class, every case and text considered in the course raises the question (s): What is the relationship between law and social policy? Does law lead or follow? Is law master or servant, shadow or corpus? Is social policy determined by the people or by the judiciary or by the legislature or by the executive branch or by the bureaucracy or by the constitution? Might social policy come from experts, customs, culture, social conditions, world opinion, necessity, crisis or an informed elite? Is justice the ultimate aim of both law and social policy?
Class Dates:
January: 9,16, 23, 30
February: 6, 13, 20, and 27
March: 5, 12-18 (Spring Break), 19, and 26
April: 2, 9
Course Syllabus
Basis of grading: There will be a final exam comprised of five essay questions each worth 20 points. The questions will invite straightforward expository prose responses (there are no hidden or subtle issues lurking in the questions). Each question will ask ‘what’ or ‘why’ or both or will begin with instructions to ‘discuss’ or ‘evaluate’ or ‘describe’ or ‘compare’ or ‘provide examples of’. Each question will invite the student to demonstrate both reportorial and analytical skills based on memory, preparation, analysis, critical thinking and command of class presentations. Good reportage will earn a “C” while superb insight and analysis will earn an “A”. [See the attached Appendix for more elaboration on the grading criteria].
You may contact me directly at dvish@middreut.com or you may communicate through a class ombuds committee of three students that will be appointed to facilitate presentation of any complaints, suggestions or requests that an individual student may not want to present directly.
Class plan: There will be fourteen classes beginning January 9 and ending April 9. Twelve class plans have been prepared (unplanned time allows for productivity through flexibility and the opportunity to review, summarize and talk about the final exam): The first four classes are introductory and historical and treat the course resources, the three departments of government and twenty one law and social policy questions considered by Tocqueville in his master work Democracy In America (1835, 1840). The ensuing eight classes will cover (in the sequence in which they will be considered): Capital Punishment, Segregation, Libel, Corporate Political Activity, War Powers, Torture and Terrorism, Family and Governmental Takings.
The first four substantive lectures are animated with a focus on judicial power and social policy, the next two on executive branch power and social policy and the final two on legislative power and social policy. Four broad types of law and policy shape the course: ECONOMIC (Takings and Corporate Political Activity) LIBERTY (Libel and Family), THE STATE (War Powers and Enhanced Interrogation) and SOCIETY (Capital Punishment and Segregation).
Textbooks
1) Erwin Chemerinsky, Constitutional Law: Principles and Policies (4th Edition, Aspen Student Treatise Series, 2011). ISBN 978-0-7355-9808-3.
2) The Federalist Papers, Introduction and Notes by Charles R. Kesler, Edited by Clinton Rossiter (Signet Classic, 1999) First Signet Classic Printing, April 2003.
3) Alexis de Tocqueville, Democracy in America (Penguin Classics, 2003) ISBN-13: 978-0-140-44760-6.
4) Josephine Clara Goldmark (1877-1950); Hobbes, Locke and Rousseau on the social contract.
DV
Justice is the end of government. It is the end of civil society. It ever has been, and ever will be, pursued until it be obtained, or until liberty be lost in the pursuit. –Madison, The Federalist Papers No. 51 p. 321.
[Class Plans Follow]
Lecture #1: INTRODUCTION: The Power of the People
[January 9, 2012]
The people reign in the American political world like God over the universe. --Tocqueville 71
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Assignments for Class #1: Introduction: The Power of the People, Money and Property
1. Alexis de Tocqueville, Democracy in America (Penguin Classics 2003) (With an Introduction and Notes by Isaac Kramnick) (Cited in the Syllabus as “Tocqueville”). The aim of this book was to reveal American laws. [335]. The discussion of Tocqueville will extend over the first four classes. Read Section III of the Introduction by Kramnick in its entirety, pages xxiv through xxxvii and pages xliii through xlvii, the concluding part of Section IV. Also read the author’s Introduction (an excellent historical description of the interplay between law and social policy) pp. 11-16: A new political science is needed for a totally new world. [16].
2. Tocqueville Chapter 2 pp. 36-58 (always read the introductory head notes at the beginning of each chapter). This chapter is an overview of the social, cultural, religious mix that the United States is. It sets the course for the course. Many of its specific topics will be treated in more detail over the next three classes: the national character, common language, equality, land, liberty, the cultural differences between north and south, the nature of ‘gold seekers’, the social theory of the United States, the source and object of laws both penal and political, public education, religion, the spirit of religion and liberty (in opposition or support?) the relationship between law and social conditions.
3. Tocqueville Chapter 3 “Social Conditions” and their impact on the laws pp. 58-67 especially the role the laws of inheritance play in the progress of human affairs. I am not even aware of a country where the love of money has a larger place in men’s hearts or where they express a deeper scorn for the theory of a permanent equality of possessions. [64].
4. Tocqueville Chapter 4 pp. 68-71 “The Sovereignty of the People”: The people reign in the American political world like God over the universe. [71].The collective will of the nation, two impediments to progress before independence, its role in all things.
5. Chemerinsky Chapter 1, Section 1.4 “How Should the Constitution Be Interpreted?” pp.15-26. END
Lecture #2: The Judiciary
[January 16, 2012]
…there is no liberty if the power of judging be not separated from the legislative and executive powers. The Federalist Papers, No. 78: The Judiciary Department (Hamilton)
…an American judge is dragged, despite himself, on to the political field.Tocqueville 121
There is hardly a political question in the United States which does not sooner or later turn into a judicial one. Tocqueville 315
…the idea that gold and silver mines are the source of national wealth: a fatal idea which has done more to impoverish those European nations who were enslaved by it and has destroyed more men in America than the united influence of war and bad laws. Tocqueville 41
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Assignments for Class #2:
1. The Federalist Papers, No. 78: The Judiciary Department (Hamilton) pp. 463-471.
2. Alexis De Tocqueville, Democracy in America (Penguin Classics, 2003) Chapter 6 Judicial Power in the United States…pp. 116-124; The Federal Courts of Justice pp.161-177 (especially the head notes of each section); page 315. The three characteristics of judicial power, the political power of the judge, the power to declare laws unconstitutional [here is the threshold of law and social policy].
3. Tocqueville Chapter 8 “The Federal Courts of Justice” pp. 161-177.
4. Marbury v. Madison 5 U.S. 137 (1803)
5. Erwin Chemerinsky, Constitutional Law: Principles and Policies (4th Edition, Aspen Publishers, New York), Chapter 2, The Federal Judicial Power pages 32-37, 43-45, 52 (Advisory Opinions) 130-135 (Political Questions).
Laws are always unstable unless they are founded upon the manners of a nation; manners are the only durable and resisting power in a people. -Tocqueville Ch. XV 319.
End
Lecture #3: The Legislature
[January 23, 2012]
It is to a legislature thus constituted that almost all the authority of the government has been entrusted. Tocqueville Ch. XV
The executive power in our government is not the only, perhaps not even the principal, object of my solicitude. The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period. Tocqueville quoting Thomas Jefferson Ch. XV
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Assignments for Class #3:
1. Chemerinsky Chapter 3 The Federal Legislative Power Section 3.1 pp. 238-240; Section 3.3.3—3.3.5 Commerce Clause Before and After 1937 pp. 251-269.
2. U.S. v. Lopez 514 U.S. 549 (1995) (limits of commerce clause found). Confer Chemerinsky pp.269-272.
3. Can Congress overrule the Supreme Court? Chemerinsky Section 3.6.2 “What is the Scope of Congress’s Power?” pp. 299-307.
4. Tocqueville Chapter 8 “The Federal Constitution: Legislative Powers” pp. 137-140.
5. The Federalist Papers No. 10 (Madison) on factions (compare with Tocqueville on associations) pp. 700-702; No. 47 (Madison) and No. 51 (Madison) on checks and balances, separation of powers.
6. Akers v. Baldwin, Ky. 736 S.W.2d 294 (1987); 1988 Amendment to Kentucky Constitution (Limits the mining of coal conveyed by any broad-form deed to methods of coal extraction utilized in the area at the time the deed was signed).
Hence the majority in the United States possess immense actual power and a power of opinion almost as great; and when once it has made up its mind over a question, there are, so to speak, no obstacles which might, I will not say halt, but even retard its onward course long enough to allow it time to heed the complaints of those it crushes as it goes by. The consequences of this state of affairs are dire and dangerous for the future. –Tocqueville 290.
End
Lecture #4: The Presidency and Twenty-One-Policy Issues Observed by Tocqueville
[January 30 2012]
The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11. John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, September 25, 2001.
____________________________________________
Assignments for Class #4:
1. The Federalist Papers No. 69 (Hamilton) “The Real Character of the Executive” pp.—414-421.
2. Tocqueville Chapter 8 “The Federal Constitution: The Executive Power” pp.-141-161.
3. Tocqueville commentary on: (1) fear of legislative power (288, 304-305), (2) tyranny of the majority (68, 71, 223-224, 287-305, 603,747), (3) war (755-757), (4) the law of property and inheritance (60-64, 840-841), (5) a free press (213, 222, 811-812), (6) judicial power (122, 314, 812), (7) love of money (41,64, 616-618, 627-28, 713, 721-722, 788), (8) how a new aristocracy may emerge in America (645-648), (9) lawyers (…lawyers form the only enlightened class not distrusted by the people. 314, 307-315), (10) wages (675-677) and work (639), (11) women (687, 692, 696, 700), (12) main objective of legislation and legislator (49, 817), (13) the source of laws (49, 57, 58, 71, 319, 335, 357, 362), (14) freedom and equality (583-587), (15) individualism (583-586-91, 683, 780), (16) religion (54-56, 336-352, 636), (17) public education American style (53-54, 65 [job preparation], 352-357, 537), (18) the social theory of the United States (42-47), (19) voluntary associations [compare with The Federalist Papers No. 10 (Madison on Factions] (219-227, 595-609, 700-702), (20) race (398-426); (21) manners (705).
The love of comfort has become the dominant taste of the nation. Tocqueville 618.
I have already said enough to put Anglo-American civilization in its true light. It is the product of two perfectly distinct elements which elsewhere have often been at war with one another but which in America it was somehow possible to incorporate into each other, forming a marvelous combination. I mean the spirit of religion and the spirit of freedom. . . . Far from harming each other, these two apparently opposed tendencies work in harmony and seem to lend mutual support. –Tocqueville 55-56.
O tempora, o mores! /O, the times, O, the customs! –Cicero
Lecture #5: Capital Punishment
[February 6, 2012]
Never was the death penalty more frequently prescribed and never more rarely enforced. [On the original 17th century Puritan codes in America] Tocqueville 49
No Country administers its criminal law with more kindness than the United States. While the English seem bent on carefully preserving in their penal legislation the bloody traces of the Middle Ages, the Americans have almost eliminated the death penalty from their codes. Tocqueville 653 (1840)
___________________________________
Assignments for Class #5:
1. Furman v. Georgia 408 U.S. 238 (1972).
2. Gregg v. Georgia 428 U.S. 153 (1975); Woodson v. North Carolina 428 U.S. 280 (1976).
3. Herrera v. Collins, 506 U.S. 390 (1993) (Justice Blackmun dissenting).
4. Callins v. Collins (Justice Blackmun dissenting) 510 U.S. 1141 (1994).
5. Atkins v. Virginia 536 U.S. 304 (2002). Give special attention to the METHODS for determining the evolving standard of decency. Is this a template for law and social policy working together?
6. Roper v. Simmons 543 U.S. 551 (2005).
7. Kennedy v. Louisiana 554 U.S. 47 (2008).
8. Baze v. Rees 553 U.S. 35 (2008) see opinions of Justices Stevens, Scalia and Thomas on cruel and unusual punishment.
In republican government, it is in the nature of the constitution for judges to follow the letter of the law Montesquieu, The Spirit of the Laws (1748) page 76.
End
Lecture #6: Race
[February 13, 2012]
His son is excluded from the school where the sons of Europeans come to be educated. At the theatre, any amount of gold could not buy him the right to take his seat beside his former master; in hospitals he lies apart. The black is allowed to pray to the same God as whites but not at the same altars. Tocqueville 402
Americans have granted their judges the right to base their decisions upon the constitution rather than upon the laws. –Tocqueville 118
A lengthy war in a democratic country places freedom under threat. –Tocqueville 755
_______________________________________
Assignments for Class #6:
1. Dred Scott v. Sandford 60 U.S. 393 (1857).
2. Plessy v. Ferguson 163 U.S. 537 (1896).
3. Brown v. Board of Education 347 U.S. 483 (1954).
4. Korematsu v. U.S. 214 (1944). [Also germane to Lecture #10].
5. Tocqueville “The Position of the Black Race in the United States” pp.398-426.
6. The Federalist Papers No. 54 (Madison) on why slaves are counted in the census for purposes of congressional representation pp. 334-338.
7. Chemerinsky Chapter 9, Section 9.1.1 pp.684-685, 691 (first two paragraphs only), Section 9.3.1 “Race Discrimination” pp. 706-726.
I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change with the change of circumstances, institutions must advance also to keep pace with the times. –Thomas Jefferson
End
Lecture #7: Libel
[February 20, 2012]
In order to enjoy the priceless advantages guaranteed by press freedom, one must submit to the unavoidable evils it produces. --Tocqueville 213
The power of the periodical press is second only to that of the people. --Chapter XI 217
The press is by far the most effective democratic instrument of freedom. –Tocqueville 8 12
_____________________________
Assignments for Class #7:
1. Tocqueville “The Freedom of Press in the United States” Vol. 2, Chapter 3, pp.209-219.
2. The Federalist Papers No. 84 (Hamilton) (arguing against a bill of rights) on liberty of the press (513).
3. Chemerinsky “First Amendment Limits on Tort Liability” pp. 1078-1088, 1090-1091; Section 6.3.1 “Rejection of Application Before Civil War” pp. 503-509.
4. New York Times v. Sullivan 376 U. S. 254 (1964).
5. Curtis v. Butts 388 U. S. 130 (1967).
6. Gets v. Welch 418 U. S. 323 (1974).
7. Hustler Magazine v. Falwell 485 U. S. 46 (1988).
8. Dun & Bradstreet v. Greenmoss Buildings, Inc. 472 U. S. 749 (1985).
From Cicero we learn there were few capital punishments in the twelve tables but libel was one. –Addison, The Spectator No. 451.
… there is no freedom of thought in America. –Tocqueville 299. END
Lecture #8: Corporate Political Activity
[February 27, 2012]
The business aristocracy seldom lives among the industrial population it manages; it aims not to rule them but to use them. –Tocqueville 648
Assignments for Class #8:
1. Tocqueville, “How An Aristocracy May Emerge from Industry,” Vol. 2, Chapter 20, pp. 645-648.
2. Austin v. Michigan Chamber of Commerce 494 U.S. 652 (1990): corporate wealth can unfairly influence elections [494 U.S. at 660]. REVERSED in….
3. Citizens United v. Federal Election Commission 130 S. Ct. 876 (2010).
4. Kentucky Constitution (1890) Section 151 (Corporation not to use money or other thing of value to influence election).
5. Chemerinsky, Chapter 11, Section 11.3 “Is Corporate Spending Protected” pp. 1117-1121; “Spending Money as Political Speech pp.1103-1116.
Generally speaking, I think the industrial aristocracy which we see rising before our eyes is one of the most harsh ever to appear on the earth; but at the same time, it is one of the most restrained and least dangerous. However, this is the direction in which the friends of democracy should constantly fix their gaze; for if ever aristocracy and the permanent inequality of social conditions were to infiltrate the world once again, it is predictable that this is the door by which they would enter. –Tocqueville 648
End
Lecture #9: War Powers
[March 5, 2012]
There are two things it will always be difficult for a democratic nation to do: beginning and ending a war. Tocqueville 755
A lengthy war in a democratic country places freedom under threat. Tocqueville 755
In America, conscription is unknown; men are enlisted for payment. Compulsory recruitment is so alien to the idea and so foreign to the customs of the people of the United States that I doubt whether they would ever dare to introduce it into the law. Tocqueville 260
In a time of war, the law falls silent. --Cicero
___________________________
Assignments for Class #9:
1. Chemerinsky Chapter 3 Section 3.5.1 “War Powers” pp. 290-291; Chapter 4 Section 4.1 “Inherent Powers” pp.343-348; 4 Section 4.3 “Executive Privilege” p.362; Section 6.3 “War Powers” pp. 381—392 (including presidential power and the war on terrorism, detentions, military tribunals).
2. Tocqueville Vol. 2 Part 3 Chapter 22 “Why Democratic Nations Have a Natural Desire for Peace and Why Democratic Armies Naturally Seek War” pp. 750—757; Chapter 23 “A Few Remarks on War in Democracies” pp. 767-773.
3. The Federalist Papers No. 23, 24, 25, 26, 27 (Hamilton) pp. 148-173.
4. The Federalist Papers No. 69 (Hamilton) on executive branch power pp.414-416 only; and No. 74 (Hamilton) pp. 445-446.
Montesquieu was cited more by the American founders than any source except the Bible. He was a powerful influence on James Madison, the “Father of the Constitution” persuading him that freedom and stability required a clearly defined and balanced separation of governmental powers.
Spring Break March 12-18
Lecture #10: Enhanced Interrogation
[March 19, 2012]
All those who wish to destroy freedom within a democratic nation should realize that the most reliable and the most rapid means of achieving it is war. --Tocqueville p.756
The clatter of arms drowns out the voice of the law. --Thoreau
Silent enim leges inter arma. --Cicero
____________________________
Assignments for Class #10:
1. Federalist Papers No. 34 and No. 41 (Hamilton) cited by John Yoo.
1. Memorandum of John C. Yoo for the President (this memo has been withdrawn by the current Administration as not reflective of law or policy of the United States).
THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM
The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.
The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.
The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.
September 25, 2001
MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT By John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel
Lecture #11: Family
[March 26, 2012]
I hold it to be an impious and detestable maxim that, politically speaking, the people have a right to do anything; and yet I have asserted that all authority originates in the will of the majority. Am I, then, in contradiction with myself? Tocqueville 292.
It is the very essence of democratic government that the power of the majority should be absolute. –Tocqueville 287
___________________________
Assignments for Class #11: Marriage, Procreation and Sexual Orientation
1. Meyer v. Nebraska 262 U.S. 390 (1923).
2. Loving v. Virginia 388 U.S. 1 (1967).
3. Goodrich v. Dept. of Pub. Health 790 N.E.2d 941 (MA. 2003).
4. Buck v. Bell 274 U.S. 200 (1927).
5. Skinner v. Oklahoma 316 U.S. 535 (1942).
6. Bowers v. Hardwick 478 U.S. 186 (1986).
7. Romer v. Evans 517 U.S. 620 (1996).
8. Lawrence v. Texas 539 U. S. 558 (2003).
9. Chemerinsky Chapter 9 Section 9.7.4 “Discrimination Based on Sexual Orientation” pp.807-809.
10. Chemerinsky Chapter 10, Section 10.2 “The Right to Marry” pp. 818-821 (and cases cited in Section 10.2.1 on Defense of Marriage Act and California’s Proposition 8) (Give special thought to whether the executive branch can refuse to defend a congressional law); Section 10.3 “The Right to Procreate” pp. 829, 833-834; Section 10.4 “Sexual Activity and Orientation” pp. 866-868.
END
Lecture #12: The Takings Clause
[April 2, 9, 16, 2012]
Thus it is that the effect of democracy is not to impose certain manners on men but, in a sense, to stop them having any at all. –Tocqueville p. 705
…usually the love of wealth lies at the heart of Americans’ actions…--Tocqueville 713
_________________________________
Assignments for Class #12:
1. Lochner v New York 198 U.S. 45 (1905) (limit on max work hours).
2. Muller v. Oregon 208 U.S. 412 (1908) (Brandeis Brief).
3. Pennsylvania Coal v. Mahon 260 U.S. 415 (1922).
4. Keystone Bit. Coal v. Benedictus 480 U.S. 470 (1987).
5. Eastern Industries v. Apfel 524 U.S. 498 (1998) (Coal Act).
6. Berman v. Parker 348 U.S. 26 (1954).
7. Kelo v. City of New London 125 S. Ct. 2655 (2005) (economic development).
8. Nollan v. California Coastal Comm. 483 U.S. 825 (1987) (beach access).
9. Chemerinsky Chapter 8, Section 8.4 “The Takings Clause” p. 656, “What is a Taking for Public Use” pp.678-681.
April 16th is last class
End. Janaury 2, 2012.
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