Class #3 Law & Social Policy: Legislative Power 1-30-12

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]