#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